5.Kimberly Fender — Proffer (Part 1)
130 linesKIMBERLY FENDER, being first duly sworn, testified as follows:
COURT CLERK: If you'll have a seat over there, please, in the chair. State your name and spell your last for the record, please.
KIMBERLY FENDER: Kimberly Fender, F-E-N-D-E-R. PROFFER DIRECT EXAMINATION
BY MR. YOUNG:
MR. YOUNG: Can you try it one more time just to be sure?
KIMBERLY FENDER: Kimberly Fender, F, as in Frank, E-N-D-E-R.
MR. YOUNG: Good afternoon, Ms. Fender.
KIMBERLY FENDER: Good afternoon.
MR. YOUNG: I'm just going to go straight to -- on December 12th, 2012, were you a therapist at the Columbia Counseling Center?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And on that date, did Tim Jones bring Elias Xavier Jones in to meet with you?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And did Mr. Jones fill out a screening form to tell you, like, what was going on, why he wanted Elias to meet with you?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And do you recall what he said about why he wanted Elias to meet with you?
KIMBERLY FENDER: He wrote on this form that he wanted Elias to get help with coping skills for grief over his mother.
MR. YOUNG: Was there a section where he -- where there was a bunch of blanks that he could check ones, the problem areas?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And did he check other, and can you tell the Court what he said there?
KIMBERLY FENDER: He wrote, Sad over mother's actions.
MR. YOUNG: And then on the next page of that form, did he write about any unusual fears that Elias may have?
KIMBERLY FENDER: Yes. He said he was afraid of being left alone.
MR. YOUNG: And then down at the bottom of that same page, did you ask what, if any, disciplinary measures he used?
KIMBERLY FENDER: There was a question, what methods you use to discipline your child, and he wrote Biblical correction and nose and toes.
MR. YOUNG: And did you later come to learn what those meant?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: What did those mean?
KIMBERLY FENDER: Biblical correction is in regards to spanking and nose and toes is in regard to timeout.
MR. YOUNG: Now, you're a mandatory reporter, is that right?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: Did you ever report Tim to DSS?
KIMBERLY FENDER: No, sir.
MR. YOUNG: Did you ever see anything that you thought would warrant a report to DSS?
KIMBERLY FENDER: No, sir.
MR. YOUNG: Did Tim -- what did Tim say about the goals for Elias's therapy, which is on the -- near the bottom of page four?
KIMBERLY FENDER: Again, that was to help him get coping skills for grief over his mother.
MR. YOUNG: And on that day, on the 12/12/12, did you -- how do you structure your interviews? Like, do you meet with Tim? Do you meet with Elias? How did that go?
KIMBERLY FENDER: Usually, the first session when I'm seeing children, I will interview the parents first to find out what's going on with the child that a mystery, find out what the goals are for counseling, how the child is doing, and then I'll meet with the child after.
MR. YOUNG: Okay. So you meet with the parent by themself first and then the child?
KIMBERLY FENDER: I generally try to, yes.
MR. YOUNG: Okay. So you met with Tim first on the 12th, right?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And what did Tim tell you about Eli? Was Eli having some problems in school or what was going on?
KIMBERLY FENDER: I believe he said that he had been in trouble for stealing from the teacher and some students and had been lying.
MR. YOUNG: And did Tim tell you anything about, like, he had tried Biblical correction or what did he tell you?
KIMBERLY FENDER: He said that he believes in Biblical correction, but when that doesn't help that he will dig deeper.
MR. YOUNG: Okay. And then what did he say?
KIMBERLY FENDER: He said that he got out of him, those were his words, that he was upset about mom, that she left the three older ones alone. The children told the grandparents, you aren't going to leave us alone, are you? And the animals were dying and I guess Tim had figured out that maybe she wasn't feeding them, the mom.
MR. YOUNG: And then after that, did you meet with -- you talked with Tim some more?
KIMBERLY FENDER: Uh-huh.
MR. YOUNG: But then did you meet with Eli by himself?
KIMBERLY FENDER: I can't remember -- since he was so young, I believe he was five, I can't remember if I met with him alone or with Tim in the room. Usually, I will meet alone, but when they're young, sometimes, they don't like to be alone by themselves without the parent. So I can't -- I actually can't remember.
MR. YOUNG: Okay. What do your notes reflect from your meeting with Eli?
KIMBERLY FENDER: Usually, I would ask the child how they're feeling. He said he was angry that day. He said he felt anger today. He said mom upset his feelings. He was upset about the animals and being left alone.
MR. YOUNG: Did he say what they did when they were left alone in the house?
KIMBERLY FENDER: I believe he said that we scream when our momma leaves us and we wake up.
MR. YOUNG: Did he say that they had gone to look for her?
KIMBERLY FENDER: He said, we check in her house and Cathy's bedroom. Cathy was the neighbor.
MR. YOUNG: And what did they find there?
KIMBERLY FENDER: She is sleeping in Cathy's bed with Shawn.
MR. YOUNG: And she being Amber?
KIMBERLY FENDER: Yes.
MR. YOUNG: Yeah. Did you meet with Eli again on January the 2nd?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And how was he doing that day?
KIMBERLY FENDER: He said he was feeling happy.
MR. YOUNG: Did he say why?
KIMBERLY FENDER: He said daddy is staying at the house, at the house.
MR. YOUNG: What did he say about his mom?
KIMBERLY FENDER: He said, I don't have a mom, I just have a daddy.
MR. YOUNG: Were there notes about whether or not Tim was cooking for the kids?
KIMBERLY FENDER: He said, Daddy feeds me healthy foods.
MR. YOUNG: Did you meet with Eli again on the 23rd?
KIMBERLY FENDER: Yes.
MR. YOUNG: And what did Eli tell you about his mom on that day?
KIMBERLY FENDER: He said that he feels mad. Mom won't stop lying. Daddy tried to call her, but she wouldn't stop lying.
MR. YOUNG: Did he say what she was lying about?
KIMBERLY FENDER: That she left them at the house by themselves.
MR. YOUNG: On the 23rd, did you also meet with Merah Jones?
KIMBERLY FENDER: I believe that was the 22nd. Let me make sure. That was the 22nd.
MR. YOUNG: I'm sorry. The day before Eli's last visit, you also met with Merah Jones?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And had Tim filled out a screening for your visits with Merah as well?
KIMBERLY FENDER: Yes, sir.
MR. YOUNG: And did he also again talk about what he used to discipline his child?
KIMBERLY FENDER: He wrote Biblical correction, nose and toes and take away privileges.
MR. YOUNG: My notes show like a one, two, three above those. Are those your --
KIMBERLY FENDER: Yes, sir. I asked him what order that he uses the discipline, the different discipline methods.
MR. YOUNG: Okay. Do you recall whether or not your first visit with Merah, did you meet with Tim by himself and then Merah by herself, or do you recall?
KIMBERLY FENDER: Let me look at my notes.
MR. YOUNG: Yes, I met him alone first.
COURT REPORTER: I can't hear you. You met what?
KIMBERLY FENDER: I met with dad alone initially.
MR. YOUNG: Okay. And what was Tim telling you about Merah's problems? What did he say that she was saying?
KIMBERLY FENDER: He said that she tended to hold things in and that he wasn't real sure how she's doing because she doesn't talk.
MR. YOUNG: Had she said anything to him that made him concerned about her mother?
KIMBERLY FENDER: He said she made the statement, Daddy, I want you to find me a different mommy that cooks.
MR. YOUNG: After you talked to Tim, did you then talk to Merah?
KIMBERLY FENDER: I did.
MR. YOUNG: And what did Merah tell you was going on?
KIMBERLY FENDER: She made the statement, my mom left me when sleeping. Then they went to the house to find her. I guess, the neighbor's house.
MR. YOUNG: Did Merah tell you whether or not she saw her mother leave?
KIMBERLY FENDER: There's a statement, told them mommy went out the door. It's saying she saw her mom walk out the door, yes.
MR. YOUNG: And did she say how that made her feel?
KIMBERLY FENDER: She said it makes her feel mad and sad.
MR. YOUNG: Did she say whether or not her mother was telling the truth about leaving them?
KIMBERLY FENDER: She said mom didn't tell her the truth. She told a lie.
COURT REPORTER: Can you repeat that?
KIMBERLY FENDER: She said that mom didn't tell the truth, that she tells us a lie. That she left us at the house.
MR. YOUNG: Your Honor, that would be the Defense's proffer.
THE COURT: Go ahead, Ms. Mayes?
MS. MAYES: Did you say go ahead?
THE COURT: Yeah, go ahead.
PROFFER CROSS-EXAMINATION BY MS. MAYES
BY MS. MAYES:
MS. MAYES: And just a few questions on that. Your last session with the children would have been January 2013?
KIMBERLY FENDER: Yes, ma'am.
MS. MAYES: And those prior sessions you had, there was an active divorce or custody case during that frame, wasn't there?
KIMBERLY FENDER: I'm not sure. Usually, when parents bring children in, if there's a separation, I'm really clear about I don't testify in court for custody. I'm not a custody expert, so -- but I don't have anything in my notes. Actually, I think --
MS. MAYES: The separation --
KIMBERLY FENDER: Eli's -- Elias's first note, it said dad said there is an emergency custody hearing and that he had custody of the four kids I believe.
MS. MAYES: So you wouldn't dispute that the custody issue with the children was going on during 2012, right?
KIMBERLY FENDER: Yes, ma'am.
MS. MAYES: Now, did you have any consultations later in 2014 with the school counselors who were seeing the children and working with the children?
KIMBERLY FENDER: No, ma'am. After January 23rd, I didn't have any contact.
MS. MAYES: So you're not aware of their disclosures to the school counselor concerning physical abuse?
KIMBERLY FENDER: No, ma'am.
MS. MAYES: And you're not aware of Merah's disclosure to the school counselor in 2014 that she wanted to live with her mother?
KIMBERLY FENDER: No, ma'am.
MS. MAYES: Nothing further.