Husbands v. Delaware Department of Education ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
Edward Scot Husbands,
Appellant,
V. C.A. No.: N18A-04-009 JRJ
Delaware Department of
REDACTED
Education and Delaware
Professional Standards
Board,
Appellees.
Date Submitted: April 10, 2019
Date Decided: July 8, 2019
Date Redacted: July 19, 2019
OPINION
Upon Appeal from the Professional Standards Board: AFFIRMED.
Anthony N. Delcollo, Esq., G. Kevin Fasic, Esq., Katherine Witherspoon Fry, Esq.,
Offit Kurman, P.A., 1201 N. Orange Street, Suite 7257, Wilmington, Delaware
19801, Attorneys for Appellant.
Patricia A. Davis, Deputy Attorney General, Delaware Department of Justice, 102
W. Water Street, Dover, Delaware 19904, Attorney for Appellees.
Jurden, P.J.
I. INTRODUCTION
Appellant Edward Scot Husbands (“Husbands”) appeals a decision of the
Professional Standards Board (“PSB”) revoking Husbands’ professional licenses as
a teacher and administrator. Husbands’ appeal is opposed by appellees the Delaware
Department of Education (“DOE”) and the PSB. As explained below, because the
Court finds that the PSB’s decision is supported by substantial evidence, is not based
solely on hearsay, and is free from legal error, the PSB’s decision is AFFIRMED.
Il. BACKGROUND AND PROCEDURAL HISTORY
On June 25, 2015, Husbands, a Milford School District (“MSD”)
administrator, was arrested and charged with multiple counts of unlawful sexual
contact with a person under the age of thirteen in violation of 11 Del. C. § 769 and
Endangering the Welfare of a Child in violation of 11 Del. C. § 1102.! On June 27,
2015, the Executive Director of the Delaware Criminal Justice Information System
(“DELJIS”), notified the MSD Personnel Director, Dr. Paul Walmsley, of the
charges against Husbands. Attached to that notice was a DELJIS Charge Summary
and a copy of the Complaint and Warrant and the Affidavit of Probable Cause.” On
' Record at 2008 [hereinafter “R.”].
* Id; DOE Ex. 13.1-13.5 (DELJIS Charge Summary); DOE Ex. 14.1-14.7. The alleged victims
listed in the criminal Complaint and Warrant and the Affidavit of Probable Cause are three young
girls. At the time of the alleged crimes, Child 1 was 10 years old, Child 2 was 8 years old, and
Child 3 was 10 years old. See DOE Ex. 14.1-14.7. According to the Complaint and Warrant:
Husbands attempted to touch Child 1’s vagina by touching the inner crease of her thigh in
December 2014; placed his hand under Child 2’s underwear and touched her vagina between April
2
June 29, 2015, Dr. Walmsley notified Husbands by letter that he was suspended
without pay effective June 29, 2015 based on “misconduct which is the subject of a
pending police investigation.”? On July 17, 2015, pursuant to 14 Del. C. § 1218(c),
then Secretary of Education Mark Murphy suspended Husbands’ license and
standard certificates, effective June 25, 2015, the date of Husband’s arrest. On
December 22, 2015, Dr. Walmsley notified Husbands by letter that:
pursuant to [the] School Administrator Contract between the Board of
Education of the Milford School District and [Husbands], Assistant
Principal, dated December 16, 2014 and expiring on June 30, 2016, the
Milford School District Board of Education is informing [Husbands]
that said contract will not be renewed beyond the expiration date.°
In November 2016, Husbands was tried on the above criminal charges and a
jury found him not guilty.®
On March 9, 2017, Secretary of Education Susan Bunting mailed a “Notice of
License Revocation” to Husbands.’ The Notice stated Secretary Bunting’s intent to
revoke Husbands’ Continuing License and Standard Certificates in Teacher of Social
1, 2014 and June 30, 2015; and touched Child 3’s vagina with his hand between June 1 and June
23,2015. Husbands was also charged with crimes against a fourth victim, also a young girl, (Child
4) but the Record does not contain a Complaint and Warrant or an Affidavit of Probable Cause for
those charges. Because the alleged victims are minors, the Court has assigned pseudonyms to
them and their mothers to protect the children’s privacy, and refers to them by those pseudonyms
throughout this opinion.
> R. at 2009; see also DOE Ex. 15 (Dr. Walmsley’s June 29, 2015 letter to Husbands).
4 Rawle at 2008; see also DOE Ex. 18.2-18.3.
> DOE Ex. 17 (Dr. Walmsley’s December 22, 2015 letter to Husbands).
® See H.O. Ex. 2; see also Op. Br., E-File 62230374, at 1.
7HLO. Ex. 1.
3
Studies Grades 9-12 (Valid 5-8 in a Middle School), Secondary Social Studies
Teacher Grades 9-12 (Valid 5-8 in a Middle School), and Principal/Assistant
Principal, based on Husbands’ dismissal from his position with MSD for sexual
offenses against a child.®
On April 4, 2017, pursuant to 14 Del. C. § 1218(k), Husbands submitted a
written request for a hearing before the PSB to challenge the revocation.? The
hearing (“Hearing”) was conducted before a Hearing Officer (the “H.O.”) on August
31, September 1, and September 5, 2017.'° During the Hearing, the DOE presented
testimony from ten witnesses and nineteen exhibits, which included multiple reports
from the criminal investigation.!! Husbands presented testimony from himself and
Child 7, and four exhibits.!* Before the H.O. rendered his decision, Husbands and
the DOE submitted “Post Hearing Briefs and Closing Arguments” to the H.O.¥
8 Td.
? H.O. Ex. 2. In his request, Husbands stated:
The stated rationale for the revocation is incorrect. The [MSD Board of Education]
did not non-renew Mr. Husbands’s contract “for sexual offenses against a child.”
Mr. Husbands’s non-renewal letter does not even state that the [Milford School]
Board was not renewing his contract for cause, much less state the cause. Nor was
he accorded the hearing that is required by law if his contract was not renewed for
cause, to establish whether there was any basis in fact for the non-renewal.
H.O. Ex. 2, at 2.
OR. at 1975. On June 12, 2017, the PSB notified the parties that it appointed a H.O. to preside
over the Hearing. R. at 40-41.
‘TR. at 1977-78.
2 Rawle at 2005.
'3 Id. at 1875, 1879-98 (DOE closing argument and briefing); R. at 1921-36 (Husbands’ closing
argument and briefing) (date appears to be incorrect); R. at 1956-68 (DOE Reply to Husbands’
closing argument).
4
After considering the testimony, evidence, and counsels’ post-Hearing submissions,
the H.O. issued a “Decision and Proposed Order” dated November 21, 2017 (the
“H.O. Decision”),'* which included the following “Recommended Conclusions of
Law.”!° First, Husbands was terminated or, alternatively, dismissed within the
meaning of 14 Del. C. § 1218(b)(2) because the Milford School District Board of
Education (the “MSD Board of Education”) did not renew Husbands’ administrator
contract.'© Second, Husbands was terminated or, alternatively, dismissed for sexual
offenses against children.'’ Third, Husbands’ request for attorneys’ fees and costs
should be denied because the DOE did not proceed in bad faith and the PSB does
not have the authority to award such fees and costs.'® The H.O. further
recommended that the Secretary’s proposed action to revoke Husbands’ Continuing
License and Standard Certificates be affirmed, and that pursuant to 14 Del. C. §
1218(b)(2), Husbands’ Continuing License and Standard Certificates be revoked.
Finally, the H.O. stated: “[i]n accordance with 14 Del. C. § 1218(0)(3), [Husbands]
is ineligible to petition the Secretary for reinstatement of his license.”!® Following
the H.O. Decision, Husbands and the DOE submitted memoranda to the PSB.”°
'4 Td. at 1973-2022.
15 Td. at 1974-2022.
16 Td. at 2011.
"7 Td. at 2020.
18 Td.
9 Td. at 2022.
20 Td. at 2064-71 (DOE’s post-Hearing memo); R. at 2094-113 (Husbands’ post-Hearing memo).
5
After considering the entire record, the PSB voted unanimously to adopt the
H.O.’s Recommended Findings of Fact”! and Conclusions of Law, and issued a
“Final Order” on March 20, 2018, stating:
(1) Pursuant to 14 Del. C. § 1218(b)(2), and in accordance with 14 Del.
Admin. C. § 1514-11.4, [Husbands’] Continuing License and Standard
Certificates in Teacher of Social Studies Grades 9-12 (Valid 5-8 in a
Middle School), Secondary Social Studies Teacher Grades 9-12 (Valid
5-8 in a Middle School), and Assistant Principal/Principal be revoked.
(2) Notice of the revocation of [Husbands’] Continuing License shall
be made by the Secretary, or the Secretary’s designee, to all chief state
school officers of the other states and territories of the United States as
required by 14 Del. C. § 1218(q).
(3) Pursuant to 14 Del. C. § 1218(0)(3), [Husbands’] Continuing
License may not be reinstated.”
Husbands timely appealed the PSB’s Final Order and this matter is now ripe for
decision.”?
*! The PSB adopted the H.O.’s Recommended Findings of Fact “with the modification to the dates
of Husbands’ criminal trial.” R. at 2134.
22 Rawle at 2134-35.
*3 After reviewing the parties’ briefs, the Court held a teleconference with counsel and requested
supplemental briefing from the DOE relating to the Hearing testimony of the mothers of the alleged
victims. See Superior Court Proceeding Worksheet, E-File 62665154, Nov. 13, 2018.
Specifically, the Court asked the DOE to provide a statement of facts based on the non-hearsay
evidence presented through the mothers’ testimony. Jd.
6
il. HEARING EVIDENCE
The DOE presented the following evidence at the Hearing.”
Child 125
At the time of the alleged offenses, Child 1 was ten or eleven and in fourth
grade.”° Child 1 and Child 7 were. They had numerous sleepovers, sometimes as
often as every other weekend. During their sleepovers, the girls typically stayed at
Child 7’s house but sometimes stayed at Child 1’s house.?’ Child 1 preferred
sleeping over at Child 7’s house because it was more fun, there was more to do, and
she could stay up later. When she slept over, Child 1 typically arrived early Saturday
*4 Tn light of Husbands’ argument on appeal that the PSB Final Order is not based on substantial
evidence, the Court finds it necessary to provide a very thorough recitation of the evidence
presented—hence, the fifty-five pages devoted to the Hearing evidence. Children 1-4, the four
young girls who accused Husbands of inappropriately touching them, and who testified against
him in his criminal trial, did not testify live at the Hearing. Instead, the transcripts of their sworn
testimony from Husbands’ criminal trial were submitted to the H.O., and portions of their trial
testimony were read into the Record during the Hearing. R. at 974, 1265 (Hr’g Tr. at 139, 370)
(hard copy of first two days Husbands’ criminal trial transcript, including the sworn testimony of
every witness, opening statements, and closing arguments, was admitted into evidence); see also
R. at 1052-56, 87-93 (portions read into record). For reasons not clear to the Court, the first day
of Husbands’ criminal trial appears in the Record three times and the second day appears in the
record one time. See R. at 475-644, 664-833, 1463-1632, 1670-1868. The H.O. reviewed the
entire criminal trial transcript — not just portions of sworn testtmony. When the DOE sought to
introduce the first day of the criminal trial transcript, Husbands’ objected, arguing that the entire
transcript should be admitted, not just the first day of sworn testimony. On appeal, however,
Husbands argues that while it was proper to admit the transcript as evidence, the PSB committed
legal error because it relied solely on hearsay evidence to support its decision.
5 Rawle at 595-621 (Child 1’s sworn testimony from Husbands’ criminal trial).
6 According to the Complaint and Warrant, Child 1 was ten years old. See R. at 1458, 62 (DOE
Ex. 14.3, 14.7). At the time of Husbands’ criminal trial in November 2016, Child 1 was twelve
years old and in the seventh grade.
27 During the time of the alleged offenses and at the time of the Hearing, Child 7 lived with
Husbands. See R. at 1247-56.
7
morning and left Sunday. The girls played games, talked, and went outside. At
night, she and Child 7 slept on air mattresses in the living room and either Husbands
or Mother 7 would sleep in the room with them. Mother 7 slept in the red recliner
and Husbands slept on the air mattresses between Child 1 and Child 7.
In December 2014, during a sleepover at Husbands’ house, Child 1 and Child
7 were on separate air mattresses in the living room watching “Taken.” Child 1 said
they started watching the movie around 8:00 p.m., which was later than normal. For
the beginning of the movie, Mother 7 sat in the red recliner and Husbands laid on
the air mattresses between Child 1 and Child 7. After a while, Mother 7 went to her
bedroom to sleep. As the movie continued, Child 1 grew tired because it was later
than her usual] bedtime. At this point, Child 1 and Husbands were under the same
blanket. According to Child 1, Husbands slid his hand between Child 1’s legs and
placed it on her thigh over her pajama pants. Husbands then began to slide his hand
along Child 1’s inner thigh without speaking and attempted to slide his hand up to
Child 1’s “girl area” and touch her front. Each time Husbands made an advance on
Child 1, she pushed his hand away and tried to keep watching the movie. Child 1
could not tell if Child 7 was asleep during all of this because Husbands was between
the girls. After pushing Husbands’ hand away several times, Child 1 left the air
mattress and started to walk around. To find an excuse to leave the living room,
Child 1 went into Child 7’s room and used the restroom. For the rest of the
sleepover, Child 1 refused to lie down and was afraid to fall asleep because she did
not know what Husbands would do to her if she fell asleep.
At first, Child 1 did not tell anyone about the December 2014 incident because
she was concerned about how people would react. In particular, Child 1 was
concerned that Husbands might do something even worse to hurt the family, like
ruining relationships. Then in the Spring of 2015, Child 1 told her parents. Her
parents did not ask many questions because they were in shock. Child 1’s parents
took Child 1 to the Child Advocacy Center (“CAC”) for an interview. Prior to the
CAC interview, Child 1 did not talk to her parents about most of the incident. During
the time between her CAC interview and Husbands’ criminal trial, she did not talk
to anyone about the incident or her criminal trial testimony.
Mother 178
Mother 1 has known Husbands for almost twenty years. Husbands was
married to her sister-in-law. Mother 1’s children, Child 1 and her older brother, and
Husbands’ children were good friends and the families were close. Mother | and
Mother 7 are close, and Mother 7 is like a sister to her because they have known
each other for twenty-four years.*? Mother 1’s family went over to Husbands’ house
at least once a month and her children spent more time there than she or her husband.
28 Rawle at 955-86 (Hr’g Tr. at 120-51).
2° Mother 1 is married to Mother 7’s brother.
During the summer, Child 1 and her brother spent most weekends at Husbands’
house and sometimes stayed as many as three or four days a week. According to
Mother 1, she and her husband often used Husbands and Mother 7 as babysitters.
In the Spring of 2014, Mother 1 noticed a difference in her children. In the
past, Mother 1’s children were eager to go to Husbands’ house because Mother 7
was the “fun aunt.”2° But “it got to the point where [Child 1] really didn’t want to
go over there.”?! Mother 1 became upset because she could not understand why
Child 1 no longer wanted to go to Husbands’ house and Child 1 would not tell her
why. According to Mother 1, the tension grew to the point where Mother 1 and
Child 1 would argue about going to Husbands’ house and she would “kind of make
[Child 1] go.”3?
According to Mother 1, in December 2014, the situation between Child 1 and
Husbands came to light. At a family party at her mother in laws’ house, Mother 1
and all the adults (including Husbands) were sitting in the great room while the
children were playing at a table in the kitchen. At some point, Child 1 left the kitchen
and came into the great room to talk to Mother 1. Child 1 told Mother 1 that
Husbands was texting her and “wanted her to come spend the night, that [Child 7]
30 Rawle at 957-58 (Hr’g Tr. at 122-23).
31 Rawle at 958 (Hr’g Tr. at 123).
32 Id
10
wanted her to come spend the night.”3? Mother 1 found this odd because she could
not understand why Husbands would text Child 1 instead of talking to Mother 1,
who was in the same room as Husbands. Mother 1 asked Child 1 if Child 7 had
asked her to sleep over and Child 1 told her no.*4 Child 1 then told Mother 1 that
she did not want to sleep over at Husbands’ house. Mother | told her that it was fine
and “we’ll just say you are really tired, it has been a long day, and we will just go
home.”*> When Child 1’s family got home, Child 1 asked to talk to Mother 1. Child
1 and Mother 1 went into Child 1’s bedroom and Child 1 began to cry. Mother 1
tried to calm her and asked Child 1 “what was going on.”°° Child 1 said that she did
not want to go to Husbands’ house anymore “[b]ecause I’m afraid of [Husbands].”?’
When Mother 1 asked why Child 1 was afraid of Husbands, Child 1 replied, “[h]e
touches me.”?® After hearing this, Mother 1 was “in shock and taken back” and
asked, “[h]ow did he touch you?”’? Child 1 told Mother 1 that Husbands touched
her inner thigh, girl area, and privates, and showed Mother 1 the area on her inner
thigh.*° Mother 1 calmed Child 1, went to get her husband, and had Child 1 tell her
husband what Child 1 had just reported to Mother 1. Child 1 repeated what she said
33 Rawle at 959 (Hr’g Tr. at 124.)
34 Id.
35 R. at 959 (Hr’g Tr. at 124).
36 Id
37 Id. at 959-60 (Hr’g Tr. at 124-25).
38 Td. at 960.
39 Id.
40 Mother 1 explained, “[g]irl area for our house was a region, upper inner thigh around.” Jd.
11
to Mother 1. Mother 1 and her husband calmed down Child 1 and put her to bed.
Afterward, Mother | and her husband discussed what Child | said, but decided not
to report it because her husband “felt that maybe [Child 1] was misunderstanding
and... [they] needed to talk to [Husbands] first.”4! Mother 1 testified that she and
the rest of the family knew the implications of reporting such accusations about an
educator and “did not want to start anything that was a misunderstanding.”*
Following Child 1’s revelations, Mother 1’s children did not go to Husbands’
house from December 2014 to April 2015. Instead, Child 7 and her brother visited
Child 1 and Child 1’s brother at Mother 1’s house. But during Spring Break in April
2015, Child 1 spent the night at the Husbands’ house. According to Mother 1, Child
1 did not want to go, but went anyway to make Child 7 happy because Child 7
wanted her to come over. As a compromise, Mother 1 told Child 1 that she and her
husband would wake up early the next day and come get her because Child 1 did not
want to spend the whole next day at Husbands’ house. When Mother 1 met Mother
7 at their usual drop-off spot, she told Mother 7 that Husbands made Child 1
uncomfortable but did not tell Mother 7 why. Mother 7 looked confused but said
she would take care of it and took Child 1 back to her house for the sleepover.
4TR at 961.
42 Id
12
Early the following morning, Child 1 called Mother 1. Child 1 was crying
hysterically and told Mother 1 that Husbands came into Child 7’s bedroom the night
before and laid down on Child 7’s bed with Child 1 and tried to touch her again.
Child 1 jumped up out of bed screaming and crying and ran into the living room to
Mother 7.43 Child 1 said that Husbands touched her on the leg, she pushed him off,
and she got out of bed.“
Mother 1 and her husband went to Husbands’ house. Mother 1 had her son
take the other children outside so she and her husband could talk to Mother 7 about
what happened. Mother 7 told Mother 1 that when the girls went to bed for the night,
she locked Child 7’s bedroom door and kept the key. During the night, Child 1 woke
up to Husbands lying in bed with her and touching her leg. Child 1 ran screaming
from the bedroom into the living room and woke up Mother 7 who was in the
recliner. Mother 7 told Mother 1 that while talking to Child 1, out of the corner of
her eye she saw Husbands leave Child 7’s bedroom and go back to their bedroom.
According to Mother 1, when Mother 7 went into their bedroom, Husbands
pretended to be asleep. When Mother 7 asked him what was going on, Husbands
told her that he had been in their room all night. Mother 7 told Mother 1 that Mother
7 went through his shorts, which were on the floor, and found a small screwdriver
3 Rawle at 963-64 (Hr’g Tr. at 128-29).
44 Td. at 964.
13
ina pocket. Mother 7 told Mother 1 she believed that Husbands used the screwdriver
to unlock Child 7’s door.
After Mother 1 and her husband spoke to Mother 7, Mother 1, her husband
and Mother 7 called Husbands into the room to confront him and told him everything
Child 1 reported. According to Mother 1, Husbands “stayed very calm and very
cool, which I thought was odd.”“° Husbands told them that he did not understand
where the accusations were coming from. He explained that on occasion he would
pick up the girls (when they asked him) by their leg and arm and spin them around
like airplanes and maybe that was when Child | thought he touched her. After this
conversation, Mother 1’s children never returned to Husbands’ house and their
family “pretty much cut all ties with [Husbands],” but remained in contact with
Mother 7.*°
According to Mother 1, Mother 7 called Mother 1 a week later from her
parents’ house and said that Child 7 told her no one wanted to sleep over at her house
because her daddy touches them. Mother 1 went to Mother 7’s parents’ house, gave
Mother 7 the number for Child Protective Services, and told her, “[i]f you don’t
make the call, I’m going to make the call.”*” Mother 1 stood in the garage while
4 Rawle at 965.
“6 R. at 965-66.
47 Rawle at 966. It is unclear from the record how much time passed between Mother 1 and Mother
7’s phone call and Mother 1 going to Mother 7’s parents and telling Mother 7 to call Child
Protective Services. Id.
14
Mother 7 made the call. After that, Child Family Services investigated Mother 1
and her husband for not reporting Child 1’s accusations. According to Mother 1, the
investigation determined that she and her husband were good parents and that their
home was safe.
Mother | took Child 1 fora CAC interview. She was not allowed in the room
during Child 1’s interview and does not know what was said. Mother 1 was
questioned about not reporting Child 1’s accusations. Mother 1 was not present for
Child 1’s testimony at Husbands’ criminal trial because Mother 1 was also a witness.
Mother 1 said that testifying was extremely difficult for Child 1 and Child 1 went to
counseling shortly after trial and at the time of the Hearing was still in counseling.
On re-cross examination, Mother | testified that she spoke with Child 7 and
acknowledged that she previously testified she did not speak with Child 7. Mother
1 forgot she had a conversation with Child 7 the same day Mother 7 contacted Child
Protective Services. Mother 1 took Child 7 for a walk and asked her if she told
Mother 7 that nobody wants to stay over because her daddy touches them. Child 7
said “yes.” Mother | asked Child 7 if she knew it was wrong and Child 7 said “yes.”
Mother 1 testified she did not tell Child 7 what to say and was not present when
Child 7 testified during Husbands’ criminal trial.
15
Child 28
At the time of the alleged offenses, Child 2 was eight years old. Child 2
testified that she and Child 7 became friends in third grade and were in the same
class. Mother 2 and Mother 7, who were seventh grade teachers at the same school,
were friends. While in the third grade, Child 2 and Child 7 played with American
Girl dolls, played school, made things out of dirt, and played on the same sports
team. Child 2 and Child 7 talked about sports, maybe talked about family, and rarely
talked about school. Child 2 and Child 7 had numerous sleepovers, which were
usually at Husbands’ house. They slept in Child 7’s bedroom or in the living room
on separate air mattresses. If they wanted to watch a movie or television, the girls
slept in the living room.
In the spring of third grade, Child 2 and Child 7 had a sleepover at Husbands’
house. They watched a movie in the living room and slept on separate air mattresses.
Child 7’s brother and Mother 7 also slept at the house that night. Child 2 was unsure
whether Mother 7 slept in the red recliner in the living room. When Child 2 woke
up around 8:30 a.m., Child 7 was still sleeping. At this time, Husbands came into
the living room and laid down on the air mattress with Child 2, next to Child 7’s air
mattress. At first, Husbands talked to Child 2 about his cat, which was on the air
mattress with Husbands and Child 2. Then Husbands’ reached under Child 2’s
48R. at 621-41.
16
blanket with his hand and started touching Child 2 over the front of her pajama pants.
He moved his hand under Child 2’s pajama pants and rubbed the front of her
underwear. He then reached under Child 2’s underwear and directly touched and
rubbed Child 2’s front. Husbands stopped touching and rubbing Child 2’s front only
when she asked to use the bathroom. Child 2 asked to use the bathroom because she
felt uncomfortable. When Child 2 went to the bathroom, Child 7 woke up and she
and Child 7 “hung out” for the remainder of the sleepover. Child 2 testified that she
thought Child 7’s brother was asleep during the entire incident because she did not
see him. Child 2 testified that Mother 7 was cleaning somewhere in the house during
the incident.
In the middle of fourth grade, Child 2 told Child 7 what Husbands did to her
at the sleepover. Child 2 testified that she did not tell anyone else about the incident.
In June of 2015, Mother 2 took Child 2 to the CAC for an interview. Child 2
testified that on the way to the CAC Mother 2 told did not ask any questions but told
Child 2 that the CAC had questions to ask her. On the drive home after the CAC
interview, Mother 2 asked Child 2 questions about the CAC interview but it is
unclear whether Child 2 answered the questions or what types of questions Mother
2 asked Child 2.*?
See R. at 1619-20, 1628-29.
17
Mother 2°°
Mother 2 has been a middle school teacher in Milton, Delaware for ten years.
Mother 2 and Mother 7 taught at the same school and were friendly because they
worked together. They did not interact outside of school hours unless they had a
school function. According to Mother 2, she and Mother 7 never really discussed
their personal lives and did not want to get involved in each other’s personal lives.
In the spring of 2015, Mother 7 told Mother 2 in passing that Mother 7 was
having marital issues but did not provide any details. According to Mother 2, after
Det. Truitt contacted her and informed her of the accusations against Husbands in
June of 2015, any friendship she had with Mother 7 ended.*!
When Child 2 was in third grade (2013-14), Child 2 and Child 7 were friends.
Child 2 and Child 7 became friends while playing on the same soccer team. During
their friendship, Child 2 and Child 7 had multiple sleepovers at Husbands’ house.
After the sleepovers, Child 2 never told Mother 2 that Husbands touched her. The
girls were very close in third grade but Child 7 did not attend Child 2’s birthday
party in August, right before going into fourth grade. This broke Child 2’s heart and
Mother 2 stopped encouraging the friendship. According to Mother 2, Child 2 and
°° R. at 1039-67 (Hr’g Tr. at 204-32).
>! See R. at 1042-43, 1047-48 (Hr’g Tr. at 207-08, 212-13).
18
Child 7’s friendship continued to dissolve in fourth grade because they were not in
the same class, and the sleepovers stopped.
At the end of the school year in 2015, Detective Truitt contacted Mother 2 and
informed her of the accusations of “sexual abuse in the home” against Husbands.”
When she learned of the accusations, Mother 2 was shocked and could not believe
“that anything like that could have possibly happened.”°? Mother 2 “thought
[Husbands’ house] was a safe place to send [her] children” because Husbands “was
a school administrator” and Mother 7 “was a teacher.”** Det. Truitt told Mother 2
that it was possible Husbands touched Child 2, but Mother 2 replied that she did not
think it was possible because Child 2 would have told her. Mother 2 agreed to bring
Child 2 in for a CAC interview “to rule it out.”>> During Child 2’s CAC interview,
Mother 2 remained in the waiting room. After the interview, Mother 2 was taken
into a room with multiple people and was “quite surprised” when she was told that
Child 2 said Husbands touched “her vaginal area on top of her clothes and then
underneath of her clothes and in her underwear he touched her in her vaginal area.”°®
When Mother 2 heard this she “completely lost [her] mind” and could not understand
why Child 2 never told her.°’
°2R. at 1042-43 (Hr’g Tr. at 207-08).
3 Rawle at 1043.
54 Id
55 Id.
°° R. at 1043-44.
°7R. at 1044-45.
19
After learning about Child 2’s statements, Mother 2 had to collect herself for
about an hour before she talked to Child 2 about what happened. She did not want
Child 2 to see her upset.>® Once she collected herself, Mother 2 drove Child 2 home.
During the car ride, Child 2 said Child 7 was a special friend and she did not tell
Mother 2 because she was afraid to lose her friend.
Child 2 then told Mother 2 what happened. While Child 7 was still sleeping,
Husbands came into the living room with a cat, sat down on her air mattress and
started talking about the cat.°? First, Husbands petted the cat, but then his hand
moved to Child 2’s leg and then his hand went under Child 2’s blanket. Husbands
touched her vaginal area and then touched her underneath her clothes. Mother 2
asked Child 2 how long it lasted. Child 2 could not give a definitive answer but said
it was “a while.” Mother 2 then asked when it stopped and Child 2 replied that
Husbands stopped when she asked to go to the bathroom. Child 2 said it hurt when
she went to the bathroom. During this conversation, Mother 2 told Child 2 that men
are not allowed to touch her there, that what Husbands did was not okay and was a
crime, and that he would pay for it. At some point, Child 2 told Mother 2 that when
she talked to Child 7 about what happened, Child 7 told her that Husbands “has a
hygiene and he likes to make sure everybody is clean.”
8 Td. at 1045.
59 Td.
OR. at 1061.
20
Mother 2 testified that during Husbands’ criminal trial she told Child 2 to be
cordial but to keep her distance and encouraged Child 2 not to be friends with Child
7. Mother 2 was present for Husbands’ criminal trial but was sequestered during the
alleged victims’ testimony.°!
According to Mother 2, testifying at Husbands’ criminal trial was hard on
Child 2 and she believes that Child 2 told the truth. Mother 2 stated that Child 2
currently is not in counseling because a counseling program professor told her
counseling would retraumatize Child 2. Instead, the professor recommended Child
2 attend counseling in preparation for being a witness. Thus, Child 2 attended
counseling from right before the criminal trial into sixth grade. Mother 2 also
testified that her older daughter is “creeped out” by the whole thing because she is
old enough to understand. Mother 2’s husband also received counseling.
During her Hearing testimony, Mother 2 read a portion of Child 2’s sworn
trial testimony into the Record.”
61 According to Mother 2, she was unable to testify at Husbands’ criminal trial because she and
her husband heard opening statements. See R. at 1047 (Hr’g Tr. at 212).
& R. at 1052-56; see also supra pp. 16-17.
21
Child 3°
At the time of the alleged offenses, Child 3 was ten years old. Child 3 and
Child 7 met in fourth grade and were good friends. She remembers having four or
five sleepovers at Husbands’ house. She and Child 7 would sleep in Child 7’s bed
or in the living room on separate, but pushed together, air mattresses.
In May 2015, during one such sleepover, Child 3 and Child 7 slept in the living
room on separate air mattresses. Child 3 slept on the larger air mattress and Child 7
slept on the smaller one. When Child 3 woke up the following morning, Husbands
came into the living room and laid down on Child 3’s air mattress.°' Husbands
reached over with his hand and touched her “butt” and “front.” Child 3 tried to get
Child 7’s attention. Eventually, Child 3 got up and walked away from Husbands
and Child 7 followed her.
After the incident, Child 3 did not want to talk to Mother 3 about it. Mother
3 took Child 3 to the police station for an interview, but Child 3 did not talk to the
police officers. Mother 3 took Child 3 to the CAC for an interview but Child 3 did
not talk to the interviewer. Then Carla Ennals, a social worker in the Department of
Justice (the “DOJ”) Victim Witness Unit, interviewed Child 3 and she finally talked
about the incident.
°3 See R. at 532-41, 557-76.
64 On cross-examination, Child 3 testified that she was unsure if anyone besides Husbands, Child
7, and herself were in the house. See R. at 754-55.
22
The record before H.O. included a statement from Child 3, admitted through
Ennals during Husbands’ criminal trial (pursuant to 11 Del. C. § 3507). According
to that statement, Child 3 felt weird when Husbands tried to get under her blanket,
and she tried to hold onto the blanket.®> Husbands started touching Child 3’s arm
and rubbing on her underwear. Then, with his hand, Husbands touched her close to
the front and back of her pubic area. As Husbands made his advances, Child 3 held
her legs together and scooched away. When Child 7 woke up, the girls went into
Child 7’s room.
Mother 3
When Mother 3 was eighteen or nineteen, she, Mother 7, and Husbands
worked together at a restaurant but they lost touch until their daughters became
friends in fourth grade.°’ Mother 3 said that she saw Mother 7 only when Mother 7
dropped Child 7 off at Mother 3’s house and she never “hung out” with Mother 7 or
Husbands.® According to Mother 3, most of her interaction with Mother 7 was
through phone calls and texts and was “all about the kids.” She no longer speaks
to Mother 7.
65 See R. at 541-56. Because of Husbands’ arguments on appeal, it is important to note that,
pursuant to D.R.E. 801(d)(1)(C), a statement admitted pursuant to 11 Del. C. § 3507 is not hearsay.
Infra p. 74.
66 Rawle at 987-1014 (Hr’g Tr. at 152-79).
67 Mother 2 and Mother 7 worked at two restaurants together but it is unclear whether Husbands
worked at both or just one of the restaurants. See R. at 988-89.
6 Rawle at 1006 (Hr’g Tr. at 171).
R. at 1007.
23
Mother 3 learned Mother 7 and Husbands were having marital problems when
Mother 7 dropped off Child 7 at Mother 3’s house. According to Mother 3, Mother
7 said she caught Husbands inappropriately interacting with young women online.”
Mother 3 replied that she thought that was horrible. A few months after this, Mother
7 called Mother 3. Mother 7 sounded very distraught and said she had to tell Mother
3 something but did not know how to tell her.’’ This scared Mother 3. Mother 7
told her that Husbands touched Child 3 but did not provide any details. Upon hearing
this, Mother 3 became extremely upset and started crying. Mother 7 told Mother 3
she had already called the Division of Family Services.” After this phone call,
Mother 3 left work crying and very upset, picked up Child 3, and took her to
Delaware State Police Troop 7. When she arrived at Troop 7, Mother 3 asked to
speak in the back because she did not want to discuss such a “delicate matter”
through a glass window.”? Mother 3 told the police that Husbands touched Child 3.
When the police at Troop 7 spoke to Child 3, she would not tell them what
happened. Mother 3 believes Child 3 did not want to talk about it because the officer
was aman. The police took Mother 3’s statement about what Mother 7 told her.
After taking Mother 3’s statement, the police told Mother 3 to go to Troop 4 but that
7 Rawle at 1008-09.
1 R. at 990.
? Mother 3 later learned this was not true.
73 Rawle at 992 (Hr’g Tr. at 157).
24
Child 3 did not need to go, and the CAC would contact her. Mother 3 dropped off
Child 3 and went to Troop 4. In speaking to the police at Troop 4, she learned that
Mother 7 had not called the police or Division of Family Services.
Mother 3 took Child 3 for a CAC interview. Mother 3 was not allowed in the
room during Child 3’s interview. After the interview, Mother 3 was told that Child
3 “clammed up and did not say anything.””* Because Child 3 would not talk to the
CAC interviewer, an interview was scheduled with Carla Ennals. Mother 3 testified
that during the Ennals’ interview, Child 3 finally opened up. Ennals was the only
person Child 3 talked to about the incident. Prior to Husbands’ criminal trial, Child
3 would not talk to Mother 3 about what happened.” Mother 3 believes that Child
3 did not want to talk because she was embarrassed. According to Mother 3, the
incident created tension in their home and affected Child 3’s behavior.
According to Mother 3, Mother 7 never asked her to have Child 3 make up
accusations or say that she was touched. Mother 3 believes Child 3 told the truth to
Ennals and at Husbands’ criminal trial. Child 3 never recanted. Mother 3 further
testified that it was extremely hard for Child 3 to testify at Husbands’ criminal trial
™R. at 994 (Hr’g Tr. at 159).
75 However, Child 3 did tell Mother 3 that Child 7 said Husbands touched other girls and Child 7.
R. at 999-1001 (Hr’g Tr. at 164-66). In response, Mother 3 gave the police names of the potential
victims she learned from Child 3. Jd at 1001. At some point, Mother 3 asked Mother 7 if
Husbands had touched other girls. Mother 7 told her there were other girls and that Child 7 said
Husbands had touched her. The Record does not indicate when Mother 3 asked Mother 7 about
Husbands touching other girls, when Child 3 and Mother 3 spoke about Child 3’s conversation
with Child 7, or when Mother 3 provided names of the potential victims to the police.
25
and she was attending counseling at a center for sexually abused children. It was
only after the trial that Child 3 was able to discuss the incident with Mother 3. Child
3 told Mother 3 that during the sleepover she and Child 7 pushed two air mattresses
together in the living room and that Husbands “touched her in her private[s] and in
her butt.””© Child 3 said it was horrible, and when Husbands touched her, she
squeezed her legs closed to prevent him from touching her and was “squirming away
at the same time.”””
Child 4”
At the time of the alleged offenses, Child 4 was thirteen years old and in the
seventh grade. Child 4’s family was friends with Husbands and his family. Child 4
went to Husbands’ house numerous times and spent the night. According to Child
4, the families usually got together for baseball.
In June 2014, Child 4 and her family went to Husbands house.” While
everyone mingled in the kitchen and living room area, Child 4 fell asleep on the
couch while watching TV and did not wake up until later in the evening. When
Child 4 woke up, there was a hand lying on top of her clothing over her stomach,
which made her uncomfortable. When she looked to see whose hand it was, she saw
7° R. at 1013 (Hr’g Tr. at 178).
77 Id.
BR. at 576-94.
79 Child 4 testified that her family did not intend to spend the night. R. at 103.
26
Husbands lying on an air mattress next to the couch with his hand resting on her
stomach. Because the room was dark, Child 4 was unable to see if anyone else was
in the room. At first, Child 4 thought Husbands was asleep, but she realized he was
awake when she moved to get off the couch. When she moved, Husbands opened
his eyes, looked at her, and his hand twitched. Child 4 got off the couch by going
over the armrest because Husbands did not leave any room for her to get off the
couch any other way. Once off the couch, Child 4 went to Child 7’s room for the
rest of the night.
Child 4 did not speak about the June 2014 incident until a year later. In June
2015, Mother 4 asked Child 4 some questions after learning that other young girls
accused Husbands of inappropriate touching. Prior to learning about the other girls’
accusations, Child 4 thought Husbands did not mean for his hand to be on her
stomach. But after hearing the accusations, Child 4 realized it was not an accident.
Child 4 went for an interview with the CAC in June 2015. At Husbands’ criminal
trial in November 2016, Child 4 testified that she felt Husbands did something wrong
because an adult should not touch a thirteen-year-old.
27
Mother 4°°
Mother 4 met Husbands and his family five or six years ago, when her son
and Husbands’ son became friends while playing travel baseball. The two families
became good friends and used to get together at Husbands’ house. Sometimes
Mother 4 and Mother 7 socialized without their husbands. At the time of the
Hearing, Mother 4 and Mother 7 were not close, but their sons were still close.
Mother 4 interacts with Mother 7 but they are no longer friends. In Mother 4’s
opinion, Husbands should not be an educator and the thought of it is “disgusting.”
When the accusations against Husbands’ “came out,” Mother 7 called Mother
4 at work and told Mother 4 that according to Child 7, none of Child 7’s friends
would come over because Husbands touches them.®! Mother 4 advised Mother 7
that she needed to “contact the police and the 800 number hotline” because Mother
4 knew about mandatory reporting.” Mother 4 also told Mother 7 that if she did not
make the call before four o’clock Mother 4 had to make the call.
About two days later, Mother 7 dropped her son off at Mother 4’s house for
baseball practice. Later that night, Child 4 asked Mother 4 what was going on
because she saw that Mother 7 was upset when she dropped off her son.®? When
8° R. at 1016-39 (Hr’g Tr. at 181-204).
81 Rawle at 1018. Mother 4 testified that she is “not good with dates,” but believes Mother 7 called
her during the summertime. R. at 1027 (Hr’g Tr. at 192); see also R. at 1993 (H.O. Decision).
82 Rawle at 1019. Mother 4 is employed by the Division of Family Services for the State of Delaware.
83 Rawle at 1027-28.
28
Mother 4 told Child 4 about what Child 7 had said to Mother 7, Mother 4 knew
something was wrong because of the look on Child 4’s face. Mother 4 tried to
reassure Child 4 saying, “no, honey. You never spent the night at their house ever.
You don’t have anything to worry about. You were never with him alone.”*’ But
Child 4 replied that Mother 4 had left her there once when she fell asleep on the
couch, and on that night, Child 4 woke up to find Husbands lying next to her with
his hand on her. Child 4 told Mother 4 that Husbands’ hand was on her leg and
under the covers. When Mother 4 heard this, she “just kept telling her, no, no.
You never stayed there.”°® Child 4 said she climbed off the couch, went into Child
7’s room, and “got underneath her covers very tight and covered my head.”8? Mother
4 asked if Husbands followed her and Child 4 said he did not. Child 4 told Mother
4 that she never said anything because she thought it was an accident.** The next
day, Mother 4 scheduled a CAC interview for Child 4 and took Child 4 to the police
to be interviewed. The detectives briefly spoke to Mother 4 after Child 4’s
interviews.
84 Rawle at 1019-20 (Hr’g Tr. at 184-85).
85 During Husbands’ criminal trial, Child 4 testified that Husbands touched her stomach, not her
leg. R. at 1025-26.
86 Rawle at 1020.
87 Td.
88 Mother 4 thinks that Child 4 “always knew it wasn’t an accident” but she just never told anyone.
R. at 1021 (Hr’g Tr. at. 186).
29
At the Hearing, Husband’s counsel read a portion of Child 4’s criminal trial
testimony into the record before the H.O. and questioned Mother 4 about it. The
portion that defense counsel read included Child 4’s testimony that she initially
believed that Husbands touched her accidentally, but after Mother 4 told her about
the other girls making accusations, she believed it was not an accident.®? Husbands’
counsel asked Mother 4 if she ever told Child 4 that what Husbands did was wrong.
In response, Mother 4 reasserted her initial testimony that the opposite happened:
that Mother 4 kept saying “no” and Child 4 is the one who kept saying it happened.
Mother 4 explained that she kept rejecting the idea that she left Child 4 alone at
Husbands’ house until she “finally got [herself] together,” and asked Child 4 to
explain what happened. To this day, however, Mother 4 does not remember leaving
Child 4 alone at Husbands’ house.
Mother 4 said that testifying at Husbands’ criminal trial was hard on Child 4,
but she did not change her story or recant. According to Mother 4, Child 4 just did
not want to talk about the incident at all and refused to go to counseling even though
Mother 4 set up a session.
89 Rat 1034-35.
30
Child 5”°
Child 5, a 2006 graduate of Milford High School, was in Husbands’
Government class at Milford High School.?! Child 5 babysat Husbands’ children
for about a year. She testified that while she enjoyed babysitting Husbands’
children, she had some uncomfortable interactions with Husbands.” Child 5’s most
uncomfortable interaction with Husbands was in December 2006 shortly after she
turned eighteen. Child 5 was home on break during her freshman year of college
and babysat for Husbands’ children some time between Christmas and New Year’s
when Husbands and Mother 7 went out. Child 5 could not remember the specifics,
but testified that throughout the night Husbands repeatedly texted her and the texts
were “more than, ‘how are the kids.’” The texting got to a point where Child 5
responded, “you should be enjoying your wife right now” or made some sort of
comment like that.”
When Husbands came home at the end of the night, he asked Child 5 if she
wanted to play darts and see his “man cave area,” in the basement.” Child 5 initially
said “no,” but when Husbands kept asking, she gave in and went into the basement
°° R. at 939-54 (Hr’g Tr. at 104-19).
*1 Child 5 testified that she thought it was Government but was not be sure because it was a long
time ago. See R. at 940 (Hr’g Tr. at 105). Prior to becoming an administrator, Husbands was a
teacher at Milford High School. See infra p. 54.
2 Rawle at 941 (Hr’g Tr. at 106).
°3 R. at 942 (Hr’g Tr. at 107).
4 Rawle at 942.
31
with Husbands. Child 5 explained that she wanted to say “no” but she “always
looked at [Husbands] as a figure of authority and really did not feel like [she] could
sayno....”*> Child 5 was uncomfortable being in the basement because Mother 7
was upstairs and Child 5 did understand why she was in the basement. Eventually,
Mother 7 “came down and stood behind us for a minute while we played.””© When
they finished their first game, Child 5 told Husbands she had to go home. Husbands
walked Child 5 to her car and asked if she wanted to see his new camper. When
Husbands started to go into the camper, Child 5 asked, “[a]re you going to turn the
lights on?” Husbands replied that the lights did not work.”” After Child 5 left,
Husbands texted her saying, “that was the most fun he had had in a long time.””®
After Child 5 returned to college, Husbands continued to text her
“[s]ometimes about his children” and “[s]ometimes about [her] life and whatever,”
which Child 5 felt was “just inappropriate.” Husbands texted Child 5 that he was
considering buying a house in Utah and asked her to go skiing with him there. Child
5 testified that Husbands’ texts were “inappropriate in the sense of sexual
conversation” and that she never initiated the text messages and gave only simple
responses.'°° According to Child 5, she only responded because she considers it
95 Id
© R. at 942-43 (Hr’g Tr. at 107-08).
°7 R, at 943 (Hr’g Tr. at 108).
°8 R. at 948 (Hr’g Tr. at 113).
? Id. at 948-49.
100 Rat 950 (Hr’g Tr. at 115).
32
disrespectful not to respond to an authority figure.’°! Husbands did not stop texting
Child 5 until she told him that if he did not stop she would seek a restraining order.
Child 7!
[REDACTED] She testified at the Hearing that Husbands did
not tell her what to say at the Hearing.!? During Child 7’s testimony, Husbands’
counsel introduced into evidence the transcript from the second day of Husbands’
criminal trial (which included Child 7’s sworn testimony).!™
During her Hearing testimony, Child 7 read a portion of her sworn testimony
from Husbands’ criminal trial. That testimony is as follows. | [REDACTED]
, she and Child 2 were never friends, she and Child 3 were friends but is
unsure if they still are because Child 3 has been rude to her recently, and she and
Child 4 are friends. All four children have slept over at Child 7’s house and, during
those sleepovers, the girls usually slept on air mattresses in the living room.
Husbands never laid on the air mattresses with the girls. Mother 7 and Mother | told
her what to say for her CAC interviews and Mother 7 told her untrue things, like,
'OTR. at 950.
102 Rawle at 1247-56 (Hr’g Tr. at 352-61).
103 Rat 1252-53 (Hr’g Tr. at 357-58). On direct-examination, Husbands’ counsel asked, “[a]nd
as you sit here today, has [Husbands] ever instructed you or told what to say for any hearing or
any statement you have given.” Child 7 replied, “No.” Jd. at 1253.
104 See R. at 1264-65 (Hr’g Tr. at 369-70) (also included testimony from Mother 7).
33
“frJemember, [Husbands] slept with this girl and this girl and this girl.”!° While on
a walk, Mother 1 told Child 7 to say what Mother 7 told her to say.
The following is a recitation of the remainder of Child 7’s testimony at
Husbands’ criminal trial that Child 7 did not read into the record at the Hearing (but
was in the record before the H.O.).
Mother 7 forced Child 7 to be interviewed by the CAC in June 2015 but she
never told anyone that Mother 7 forced her to be interviewed. Mother 7 and Mother
1 told her what to say “in the summer before the . . . first interview.”!°° According
to Child 7, “when [she and Mother 7] got to the interview,” Mother 7 told her
“Trlemember, [Husbands] slept with this girl and this girl and this girl . . . touched
these girls,” and told her where Husbands’ touched the alleged victims.” After this
conversation, Mother 1 took Child 7 on a walk, asked about what Mother 7 told
Child 7, and then told Child 7 to “[m]ake sure to say that in your interview, and
stuff.”!°8 Child 7 met with, but refused to speak to, the prosecution the Friday before
Husbands’ November 2015 criminal trial. Child 7 spent the weekend leading up to
105 Rawle at 1254 (Hr’g Tr. at 359).
106 Rawle at 1705-06. Child 7 testified that she knew the impact of not telling the CAC that Mother 7
and Mother 1 told her to lie about Husbands touching other children, including the CAC
interviewing Children 1-3 about Husbands’ touching them and subsequently testifying about being
touched. See R. at 1706-08.
'O7 R. at 1705-06, 11.
18 Rawle at 1706.
34
the criminal trial with Husbands.!°? The following Tuesday was the first time Child
7 told anyone that Mother 7 and Mother 1 coached her.!’° At the criminal trial, Child
7 testified that she did not tell the CAC interviewer that Husbands laid on the air
mattress with her friends, that she was never friends with Child 2, but that when they
were in the same class, Child 2 slept over at Husbands’ house, and that she did not
remember marking an anatomical drawing.'!!
Barbara Shalley-Leonard!!?
From 1986 to 2009, Barbara Shalley-Leonard was employed by MSD as a
Spanish teacher and then a guidance counselor. For a time, she taught with
Husbands at Milford High School. In 2007, when Shalley-Leonard was a guidance
counselor at Milford High School, Amanda Parisi, an English as a Second Language .
(“ESL”) teacher came to her “with some concerns” based on something one of her
students (“Child 6”) told her about Husbands.'!? Parisi told Shalley-Leonard that
Child 6 said Husbands was handing her notes saying she was pretty and attractive,
asking Child 6 if she found Husbands attractive, and asking whether Child 6 wanted
109 During cross-examination, when asked, “[y]ou don’t want to see anything bad happen to your
dad, do you, [Child 7]?,” Child 7 became upset and the Court had to take a short recess to give
Child 7 time to calm down. See R. at 1703-04.
110 On re-direct examination, Child 7 testified that she told her grandmother that Mother 1 and
Mother 7 were telling her what to say to the CAC. R. at 1719.
1! On re-direct-examination, Child 7 testified that she told the prosecutors a month before the trial
that Husbands’ did not sleep on the air mattress with the alleged victims. R. at 1718.
12 Rawle at 861-93 (Hr’g Tr. at 26-58).
"3 At the time, Child 6 was a ninth or tenth grade ESL student and Husbands was her Social
Studies teacher. R. at 862 (Hr’g Tr. at 27).
35
to stay after school for extra help. Shalley-Leonard asked Parisi to “write down as
soon as she could for memory purposes” everything she and Child 6 talked about
regarding Husbands.''* Parisi complied and gave her notes to Shalley-Leonard.
According to Shalley-Leonard, Parisi’s notes from her conversation with Child 6
were “absolutely” similar to Shalley-Leonard’s conversation with Child 6.'"°
After Parisi reported Child 6’s conversation, Shalley-Leonard called Child 6
to her office to talk about Husbands’ notes. Child 6 came to Shalley-Leonard’s
office with another student, who Child 6 had told about the notes.''® Child 6 told
Shalley-Leonard that Husbands was passing her notes and putting them down as he
was returning homework on her desk.!'’ Child 6 showed Shalley-Leonard the notes
from Husbands.!!® When Shalley-Leonard asked Child 6 how the notes made her
feel, Child 6 said that they made her confused as to why she had to stay after school
with Husbands, and afraid that if she did not, she would be in trouble. Shalley-
Leonard testified that Child 6 did not ask for or need extra help because she had a B
in Husbands’ class. On direct examination, Shalley-Leonard testified that she “had
no doubt” the notes were in Husbands’ handwriting and that the sentence, “we have
14 Rawle at 865 (Hr’g Tr. at 30). Parisi’s notes on her conversation with Child 6 were marked as
Exhibit R-1 and entered into the record before the H.O. See R. at 1431 (DOE Ex. 1).
15 Rawle at 865 (Hr’g Tr. at 30).
16 Rawle at 864 (Hr’g Tr. at 29).
N7R. at 864-65 (Hr’g Tr. at 29-30).
18 Rat 865-68 (Hr’g Tr. at 30-33). These notes were marked as Exhibits R2, R3, and R4 and
entered in the record before the H.O. See R. at 869-71 (Hr’g Tr. at 34-36 (DOE Exhibits 2-4)).
36
to keep this a secret” in one of the notes asking Child 6 to stay after school, was “a
red, big red flag.”!!? Shalley-Leonard then elaborated on why this was such a “red
99
flag”:
Asking [Child 6] if she would be able to stay after school. Outside of
the building, [Husbands] had a key to a trailer there. We have modulars
for classrooms. ... [A] teacher should never have a child in a classroom
by themselves without the door open and in full sight. That’s just a
given. But this is asking her to go to a trailer outside of school. They
can meet in a trailer.!?°
Based on this information, Shalley-Leonard became concerned that Husbands was
going to have inappropriate sexual contact with Child 6.2! Following her interview
with Child 6, Shalley-Leonard went to her principal, Dr. Phyllis Kohel, gave Dr.
Kohel Husbands’ notes and Parisi’s written statement, and told Dr. Kohel that Child
6 had to be taken out of Husbands’ classroom. !”
Dr. Kohel, with Shalley-Leonard present to interpret and_ translate,
interviewed Child 6. Dr. Kohel questioned Child 6 about each note. Child 6 said
she told her parents about the notes and they told her not to cause any trouble. Child
119 Rawle at 861 (Hr’g Tr. at 26); see also R. at 867 (Hr’g Tr. at 32). On cross-examination, Shalley-
Leonard testified she was “pretty sure” it was Husbands’ handwriting. Jd. at 888 (Hr’g Tr. at 53).
120 Rat 867-68 (Hr’g Tr. at 32-33).
121 See R. at 876 (Hr’g Tr. at 41). Shalley-Leonard testified: “the whole thing was inappropriate.
Keeping secrets, stay after school . . . in the trailer .. . a key that he should not have to a trailer.”
Id. at 876-77 (Hr’g Tr. at 41-42). According to Shalley-Leonard, only the principal and the
teachers who taught in the trailers were allowed to have a key and Husbands did not teach in a
trailer. Jd. at 876-77.
122 Rawle at 874 (Hr’g Tr. at 37).
37
6’s parents did not want the police called, which Shalley-Leonard assumed was
because “they most likely were undocumented.”!”? Following the interview, Dr.
Kohel, again with Shalley-Leonard present, interviewed two other girls who Child 6
said she had spoken to about the notes. Following these interviews, Dr. Kohel took
Child 6 out of Husbands’ class and called Husbands in to meet with her and the
Personnel Director, Dr. Walmsley.
The incident with Child 6 prompted to Shalley-Leonard to contact Child 5!*4
because Child 5 (a former student of Husbands) used to babysit Husbands’ children
when she was in high school.'*> Shalley-Leonard wanted to know if Child 5 had
experienced “anything inappropriate in all of the time that she had been baby-sitting
for [Husbands].”!7°
Dr. Phyllis Kohel!?7
Dr. Kohel was employed by the MSD in various capacities from 1984 through
2016.'28 Dr. Kohel was the Principal of Milford High School when Husbands was
a teacher there. Dr. Kohel recalled the 2007 incident involving Child 6 and
123 Rawle at 875 (Hr’g Tr. at 40).
124 Supra pp. 31-33.
125 Rawle at 878-80 (Hr’g Tr. at 43-45).
126 Rawle at 880.
127 R. at 895-939 (Hr’g Tr. at 60-104).
128 During this period, the only time Dr. Kohel was not employed by the MSD was the 2011-2012
school year when she was the Superintendent of the Woodbridge School District.
38
Husbands.!?? According to Dr. Kohel, Shalley-Leonard came to talk to her because,
given the notes and her interview of Child 6, Shalley-Leonard was concemed for
Child 6’s safety. Shalley-Leonard relayed to Dr. Kohel that as Husbands passed out
papers in the classroom, he would leave notes on Child 6’s desk asking her if she
needed tutoring. Over time, the notes became a little more personal. One of the
more personal notes told Child 6 that Husbands thought she was pretty and asked if
Child 6 thought he was handsome or pretty as well. Dr. Kohel and Shalley-Leonard
arranged an interview with Child 6 because Dr. Kohel wanted to “ask her exactly
what was going on.”!3° Present at the interview were Dr. Kohel, Shalley-Leonard,
and the Assistant Principal, Dr. McDaniel.!3!_ Dr. Kohel took notes during this
interview with Child 6.5? When Dr. Kohel asked Child 6 if she had talked to anyone
other than Shalley-Leonard about the notes, Child 6 said she had discussed the notes
with her sister, a cousin, an aunt, and another student.
Following the interview, Dr. Kohel tried to verify what Child 6 had told her
by comparing the handwriting on Ex. R-3'33 to homework from some of Husbands’
other students. According to Dr. Kohel, “[t]here was no definite documentation
129 Dr. Kohel testified that the incident occurred in the Spring of 2007. R. at 897 (Hr’g Tr. at 62).
130 Rawle at 898 (Hr’g Tr. at 63).
131 Id.
132 Dr. Kohel’s notes were marked as Ex. R-5 and admitted into the record before the H.O. R. at
1977; see also R. at 1435 (DOE Ex. 5.1-5.2)
133 Rawle at 1433 (DOE Ex. 3).
39
showing that the handwriting was the same handwriting.”'34 She also met with the
Personnel Director and discussed all the information Dr. Kohel had gathered.'*> She
and the Personnel Director concluded that “with the information that we had, we
could not prove guilt or innocence,”'° but the Personnel Director told Husbands:
[I]f the information got out, there would be a perception that he was
doing something inappropriate. So, he needed to be careful and simply
make sure that there were boundaries between his relationship with
someone as a student... .'°7
Dr. Kohel testified that Child 6’s family did not want the police or the Resource
Officer involved in the matter. Dr. Kohel surmised that the family was perhaps here
illegally and feared police involvement might result in their deportation.!*8
Dr. Kohel testified about a second incident involving Husbands. This incident
came to her attention when Shalley-Leonard showed Dr. Kohel a phone record
provided by Child 5.!°° The phone record showed that Husbands and Child 5
exchanged forty-five text messages in a sixty-eight day period, and the majority of
the texts originated from Husband’s cell phone number.'*? Shalley-Leonard brought
134 Rat 901 (Hr’g Tr. at 66).
135 See R. at 897-901 (Hr’g Tr. at 62-66).
136 Id.
137 Td, at 901-02 (Hr’g Tr. at 66-67).
138 Rawle at 902 (Hr’g Tr. at 67).
139 Child 5 and Shalley-Leonard were friends. R. at 904.
140 Child 5’s phone record was marked as Ex. R8 and entered into the record before the H.O. over
Husbands’ counsel’s relevance objection. See R. at 1439-55 (DOE Ex. 8.1-8.17). Husbands’
counsel also objected to Dr. Kohel’s testimony on this topic. See R. at 902-05, 909, 929-30 (Hr’g
Tr. at 67-70, 74, 94-95).
40
this information to Dr. Kohel’s attention because Child 5 “wanted this to stop.”!*!
Dr. Kohel’s understanding, based on her conversation with Shalley-Leonard, was
that Child 5’s parents did not approve of the fact that Child 5 “was being texted or
called so many times from a prior teacher.”!”
Upon learning this information, Dr. Kohel had a conversation with Husbands.
She told Husbands that Child 5’s father was upset that there was so much contact
with Child 5 and that it appeared to be inappropriate. Dr. Kohel also told Husbands
that his almost daily texting to Child 5 made Child 5 uncomfortable. In response,
Husbands told Dr. Kohel that most of his texts were to say he hoped everything was
going well for Child 5 in college and to talk about his children. Dr. Kohel did not
take any disciplinary action against Husbands because Child 5 was no longer a
student in the school.!*
In 2015, while serving as the MSD Superintendent, Dr. Kohel became aware
of additional incidents involving Husbands, who was then an Assistant Principal at
Milford High School. Dr. Kohel testified that while at a conference in late Spring
or June of 2015, a police officer contacted her and asked if Husbands was also at the
conference. Husbands was at the conference. The police officer told her that charges
M41 See id. at 905-07 (Hr’g Tr. at 70-72).
142 Td. at 907 (Hr’g Tr. at 72).
143 Rawle at 909 (Hr’g Tr. at 74).
4]
were being brought against Husbands for inappropriate conduct with some young
female students, and that Husbands needed to be asked to leave the school. Dr.
Kohel and Dr. Walmsley called Husbands out of the conference to speak to him. As
soon as they did that, Husbands said he had a feeling he knew what it was about and
told them Mother 7 was making unfounded charges against him. Dr. Kohel
explained to Husbands that he needed to go back to school, retrieve his personal
belongings from his office, and was suspended with pay pending further
investigation of the accusations because of the nature of the charges and the fact he
could not be around young children.
Dr. Kohel was officially notified of the charges of inappropriate sexual contact
with students under the age of thirteen against Husbands by the letter the DELJIS
Executive Director emailed to Dr. Walmsley.'“* According to Dr. Kohel, a teacher
or principal charged with crimes involving children is immediately suspended, and
once the educator is arrested, they normally are terminated.’ The teacher or
principal cannot be in school while charges are pending.'*© Dr. Kohel said that once
the charges were official, upon the advice of counsel, Husbands was suspended
without pay. Dr. Kohel testified that Dr. Walmsley spoke with DOE personnel and
44 Rat 912-13 (Hr’g Tr. at 77-78); see also R. at 1456 (DOE Ex. 14.1). As previously noted, the
criminal Complaint, Warrant, and Affidavit of Probable Cause were attached to the letter. See
infra p. 2 and note 2.
145 Td
146 Id.
42
was told that Husbands’ license was suspended and MSD had grounds to terminate
him. Dr. Kohel testified that Husbands’ contract was up for renewal/non-renewal in
December 2015 and “because [Husbands] was an administrator, the [Milford
School] Board has the right to non-renew, if they wish. So whether Mr. Husbands
was guilty or not of these accusations, our Board chose not to renew his contract
after that school year.”!4” According to Dr. Kohel, the pending charges were the
only reason Husbands’ contract was not renewed.'*® Dr. Kohel knew that given the
charges, Husbands could not have any contact with young children. According to
Dr. Kohel, there was “no way” that she could allow a teacher or principal to work in
the school district who was facing charges of sexual offenses against young children,
had a suspended license, and was not allowed to be with children under eighteen.
Dr. Paul Walmsley!”
Dr. Walmsley was the MSD Director of Personnel for approximately six
years.!°° Dr. Walmsley knows Husbands because they both worked for MSD.
Husbands was hired as a teacher in July 2001, and in July 2012 Husbands became
an Assistant Principal at Milford High School.
147 Td. at 927-28 (Hr’g Tr. at 92-93). In December of each year, the MSD Board of Education
makes contract renewal decisions.
148 Td. at 916 (Hr’g Tr. at 81).
149 Rat 1110-31 (Hr’g Tr. at 275-96).
150 Dr. Walmsley left Milford School District in July 2017 and currently works at the Odyssey
Charter School. R. at 1110 (Hr’g Tr. at 275).
43
Dr. Walmsley first learned about Husbands’ criminal charges on June 25,
2015. On that day, the police notified MSD Superintendent Dr. Kohel, and she
notified Dr. Walmsley. On June 27, 2015, Dr. Walmsley received the DELJIS report
setting forth the criminal charges against Husbands.'°’ On June 29, 2015, Dr.
Walmsley sent Husbands a “Notice of Suspension Without Pay,” informing
Husbands that he was suspended without pay effective June 25, 2015. Dr. Walmsley
testified that the suspension was based solely on the pending criminal charges.
Dr. Walmsley then testified about Husbands’ employment contract. Dr.
Walmsley testified that administrator contracts are different than teacher contracts.
The difference is that administrators sign their contracts and the MSD Board of
Education is required to give six-month’s notice for non-renewal of an
administrator’s contract. According to Dr. Walmsley, the MSD Board of Education
starts discussing every administrator’s contract (not just those up for renewal) every
November and votes on renewal/non-renewal every December. Husbands’ contract
was set to expire on June 30, 2016, during the period of his suspension, which meant
notice of non-renewal needed to be given in December 2015. During this process in
late 2015, Dr. Kohel and Dr. Walmsley provided information about Husbands’
DELJIS report to the MSD Board of Education. During an Executive Session, the
MSD Board of Education decided not to renew Husbands’ contract. On December
51 R_ at 1112-13 (Hr’g Tr. at 277-78).
44
22, 2015, Dr. Walmsley sent Husbands a “Notice of Non-Renewal,” which did not
include a reason for non-renewal.!°? Dr. Walmsley testified that he was not part of
the decision-making process, did not observe or hear the Executive Session, and
could not speak for the MSD Board of Education, but he believed the non-renewal
was based on the pending charges because it was not performance-based and there
were no budget cuts. Dr. Walmsley further testified that the DOE had suspended
Husbands’ license and he was unable to work at that time.
Charles Simpson'®
Charles Simpson is a DOE investigator who works for Associate Secretary
Angeline Rivello. Simpson testified that the DOE investigation began in 2015 and
someone else conducted the initial steps of the investigation because he did not begin
working for the DOE until May 2016. After Husbands’ criminal trial, Simpson
became the investigator and conducted all of the interviews.
The DOE was notified of the criminal charges against Husbands by a
newspaper article and by the MSD. According to Simpson, pursuant to Delaware
law, Husbands’ license was automatically suspended, effective the day of his arrest.
152 Dr. Walmsley testified that administrative contracts include a clause for termination. R. at 1125
(Hr’g Tr. at 290). The termination clause requires a hearing before the MSD Board of Education
and the School District must prove just cause. /d. at 1126. Dr. Walmsley testified that this did not
occur because Husbands was not terminated, rather, his contract was not renewed. /d.
193 Rat 1132-65 (Hr’g Tr. at 297-330).
45
An automatic suspension lasts until the criminal case is adjudicated and acquittal on
criminal charges does not preclude a separate DOE investigation.
Simpson testified that the DOE conducted a separate investigation to
determine if any disciplinary or license actions were warranted. The investigation
included reviewing the criminal trial testimony, interviews with the detectives and
adult witnesses, witness statements, and statements from the mothers of the alleged
victims.!>* Simpson testified that when he interviewed Dr. Walmsley and Dr. Kohel,
they indicated that the decision not to renew Husbands’ contract was based solely
on the sex offense charges. After a full investigation, including interviews of MSD
officials and other witnesses, Simpson reviewed his investigative findings in
consultation with Associate Secretary Rivello. They then submitted a
recommendation to Secretary of Education Bunting. Based on the investigation and
recommendation, Secretary Bunting signed a Notice of Revocation to revoke
Husbands’ license.
154 Rawle at 1142 (Hr’g Tr. at 307).
46
Detective Robert Truitt!>
Detective Truitt, a Detective in the Delaware State Police Major Crimes Unit,
testified that he has investigated numerous cases involving sexual abuse of
children'** and was involved in Husbands’ criminal investigation. According to Det.
Truitt, on June 23, 2015, Mother 3 and Mother 7 accused Husbands of
inappropriately touching children and Detective Doughty filed the initial report after
interviewing Mother 3 and Mother 7. The next day, after talking to Det. Doughty,
Det. Truitt picked up the investigation and started scheduling CAC forensic
interviews for the children involved in the investigation. !>’
According to Det. Truitt, the forensic interviewers at the CAC are trained to
interview and deal with children. The CAC interview is one-on-one and the
interviewer purposefully asks open-ended questions to allow the child to talk. While
a forensic interviewer conducts CAC interviews, a team comprised of police
officers, DOJ and Division of Family Services personnel, observes on a monitor in
a separate room. During a break, the forensic interviewer meets with the team to
determine if there are additional questions that need to be asked or subjects that need
to be further explored.
5 Rawle at 1067-1110, 1341-61 (Hr’g Tr. at 232-75, 446-66).
'56 Det. Truitt has served twenty-one years with the Delaware State Police, the last ten as a
detective. R. at 1067 (Hr’g Tr. at 232). During the investigation, Det. Truitt was stationed at
Troop 4 in Georgetown. /d. at 1068 (Hr’g Tr. at 233).
157 See R. at 1069-70 (Hr’g Tr. at 234-35).
47
Det. Truitt testified that Mother 7 reported the initial accusations to the police
after a conversation with Child 7. During that conversation, Child 7 asked if she
could sleep over at a friend’s house. When Mother 7 asked if the friend could sleep
over at their house instead, Child 7 told her no one wanted to sleepover because
daddy touches them. When Mother 7 asked Child 7 to clarify what she meant, Child
7 said that Child 2 and Child 3 told her that daddy touched them.'** Mother 7 told
Mother 3 about this conversation.!? After telling Mother 3, Mother 7 and Mother 3
reported the accusations to the police and were interviewed by Det. Doughty.
Det. Truitt testified that on June 24, 2015, the CAC interviewed Child 7, Child
2, and Child 3. Child 1 was interviewed at a later date and Child 7 had a second
CAC interview, which was consistent with her first interview.'®° Det. Truitt was a
member of the team conducting the CAC interviews and watched each interview on
a monitor from a separate room.'*! Det. Truitt testified that Child 7 disclosed that
Child 1 and Child 3 told her they had been touched by Husbands at sleepovers at her
house. Child 7 did not disclose any type of inappropriate touching to the forensic
interviewer who asked if it happened to Child 7. Child 7 disclosed that Child 1 was
uncomfortable about spending the night at her house and told the interviewer the
158 Rawle at 1073 (Hr’g Tr. at 238).
159 Tt is unclear from the record why Mother 7 did not tell Mother 2 about the accusations.
160 According to Det. Truitt, the CAC interviewed Child 7 a second time to see her reaction to what
the other children told her, if she did anything else, or told anyone else. R. at 1351 (Hr’g Tr. at
456).
161 Rawle at 1076-78 (Hr’g Tr. at 241-43).
48
name of another girl Husbands possibly touched. Child 7’s CAC interview
statements were similar to her conversation with Mother 7 and mirrored the
statements of Child 1, Child 2, Child 3, and Child 4. Child 7 never said Mother 7
told the other girls what to say and Child 7 never recanted the statements she made
during her CAC interviews.'!° Based on the CAC interviews, Det. Truitt believed
there was enough evidence to prosecute Husbands.'®? The decision to prosecute was
a collaborative decision with Deputy Attorney General Susan Purcell.' Det. Truitt
testified he never had a reason to doubt the truthfulness of the children’s
statements.'© He believes the children gave truthful statements to the CAC and were
not coached because they were alone when interviewed by a stranger, there “was no
hesitation in the story whatsoever,” and there was no time to create a story or try to
remember something they were coached on because there were too many details.’
Det. Truitt testified that he was involved in Husbands’ criminal trial and sat
through the entire trial. According to Det. Truitt, Child 1, Child 2, Child 3, and Child
4’s CAC interview statements were consistent with their testimony at Husbands’
criminal trial and they did not recant what they said in their CAC interviews. Det.
162 Rat 1075, 1082-83, 1089-90 (Hr’g Tr. at 240, 247-48, 254-55).
163 See DOE Ex. 14.1-14.7 (Complaint and Warrant and Affidavit of Probable Cause).
164 Rat 1078-79 (Hr’g Tr. at 243-44).
165 Det. Truitt testified that unlike the interviews of Child 1, Child 2, Child 3, Child 4, and Child
7, he has observed interviews where the child was not truthful. R. at 1081 (Hr’g Tr. at 246).
166 Rat 1350-51 (Hr’g Tr. at 455-56). According to Det. Truitt, there were four different children
saying they were inappropriately touched, and the inappropriate touching was similar. He did not
see any coaching by the girls’ parents or through any of the girls talking to each other.
49
Truitt said it was hard to watch the children testify and it was hard on the children
to testify. The children “looked mortified” especially when the prosecution “had
each child stand up in front of the jury box and in front of a courtroom full of people
that they had never seen before in their life and they had to stand there and show the
jurors where and how they were touched.”'®’ Det. Truitt testified that no one but
Child 7 recanted and she did not do so until she took the stand to testify at Husbands’
criminal trial. Det. Truitt noted that Child 7 “spent a day or the weekend with
[Husbands] just prior to her testifying in court.”!®* Det. Truitt testified that there
was no evidence of a conspiracy or coaching by the mothers of the child victims.
Det. Truitt then read excerpts of Child 1,'° Child 3,'”° and Child 4’s'”! sworn trial
testimony from Husbands’ criminal trial and testified that their CAC interviews were
consistent with their trial testimony.
Det. Truitt testified that he spoke with Mother 7 on a couple of different
occasions after her two children were interviewed by the CAC to confirm the facts.
Mother 7 reiterated what Child 7 told her about her friends not wanting to spend the
night.
'67 Rat 1084 (Hr’g Tr. at 249).
168 7g
169 Rawle at 1092-93 (Hr’g Tr. at 257-58 (excerpt DOE Ex. 9 (B-129:1-21))); see also supra pp. 7-9
(summary of Child 1’s trial testimony).
170 Rat 1087-89 (Hr’g Tr. at 252-54 (excerpt DOE Ex. 9 (B-85:3-21))); see also supra pp. 22-23
(summary of Child 3’s trial testimony).
MR. at 1090-1092 (Hr’g Tr. at 255-57 (excerpt DOE Ex. 9 (B105-106))); see also supra pp. 26-
27 (summary of Child 4’s trial testimony).
50
Det. Truitt testified about his interview with Husbands. Husbands told Det.
Truitt that this was a witch-hunt, “that there was an effort by the parents and
children” to accuse him of crimes because Mother 7 wanted custody of Child 7 and
her brother after their divorce. Det. Truitt admitted that although it was not in his
report, he did ask Mother 7 about Husbands’ witch-hunt claim and she said she was
not surprised Husbands would blame her. Det. Truitt testified that no one ever
brought up issues of custody and Mother 7 only mentioned that her “marriage was
failing” and was “headed for divorce.”!”
On re-direct, Det. Truitt read a portion of the narrative from Child 7’s CAC
interview:
[The CAC interviewer] asked [Child 7] if she knew why she was there
and [Child 7] replied by saying that other people are saying that her dad
has touched them, but [Husbands] is saying that he didn’t. [Child 7]
stated that she didn’t really know what was going on. [The interviewer]
then asked [Child 7] to tell her what [Child 7] knew about [Husbands]
touching them. [Child 7] stated that people come to her and ask to go
in her room, they then tell her that [Husbands] has touched them. [Child
7]| stated that [Child 3] and [Child 2] are the only ones that came to her
and told her [that Husbands touched them]. . . . [Child 7] identified
[Child 3] and [Child 2] as her friends. [Child 7] then stated that a couple
more people told their mothers about being touched and [the
interviewer] asked who they were. [Child 7] stated that this was [Child
1] and [another alleged victim]. [The interviewer] then asked [Child 7]
to tell her how [Child 3] and [Child 2] told her about it. [Child 7] stated
that [Child 2] came to her during the first month of 4th grade and [Child
12 Rawle at 1095-96 (Hr’g Tr. at 260-61). On cross-examination, Det. Truitt testified that he did not
interview all the parents of the children victims and did not ask them about Husbands’ witch-hunt
claim.
51
3] told her about it just a couple weeks ago, so they did not disclose to
her at the same time.
[The interviewer] first asked [Child 7] to tell her everything that [Child
3] told her. [Child 7] stated that she and [Child 3] were playing and it
was approximately 10:00 p.m... . so they got ready to go to sleep.
[Child 7] stated that [Husbands] came in to check on them and [Child
3] asked him to lay down with them for awhile. [Child 7] stated that in
the morning, [Child 3] asked [Child 7] to come into her bedroom.
According to [Child 7], [Child 3] then told her that [Husbands] had
touched her. According to [Child 7], [Husbands] had blown up [an air
mattress] and there was some extra room, so [Child 3] invited
[Husbands] to come and sleep with them because he was on the couch.
[Child 7] stated that this was in the living room of [Husbands’] house.
[Child 7] stated that she and [Child 3] were playing on their iPods and
then went to sleep. According to [Child 7], [Husbands] has a neck
condition and he can’t lay on anything hard, so [Child 3] asked him to
come lay on the air mattress with them. [Child 7] stated that
[Husbands] then took a blanket off the couch, laid on the air mattress
with them and slept. According to [Child 7], the sleeping configuration
was that [Child 7] was on the left side, [Child 3] was in the middle and
[Husbands] was on the right side. [Child 7] stated that in the morning,
[Husbands] came out and checked on them and then laid back down on
the bed. [Child 7] stated that [Child 3] wanted to go in [Child 7’s] room
because she’s claustrophobic and [Husbands] was laying real close
because he was about to fall off the edge. [Child 7] stated that she was
sleeping on a single air mattress and [Child 3] slept on a double sized
mattress. [Child 7] then stated that [Husbands] was on the mattress
with [Child 3]. [Child 7] stated that when she and [Child 3] went to
[Child 7’s] room, [Child 3] told her that she got touched by [Husbands]
so they stayed in her room for awhile. [Child 7] advised that [Child 3]
told her that she got touched “down here,” and [Child 7] pointed to her
genital area. [Child 7] stated that [Husbands] was about to fall off the
edge of the bed and believes that [Child 3] got touched by accident.
[Child 7] felt as if [Husbands] probably touched her with his hand so
he wouldn’t fall off the edge of the bed. [Child 7] stated that she played
on her iPhone and [Child 3] played on her iPod while they were in
[Child 7’s] room and [Husbands] made them breakfast. According to
[Child 7], [Child 3] did not say anything else about getting touched.
[Child 7] advised that she and [Child 3] then went out to eat breakfast.
52
[Child 7] stated that [Child 3] told her this the first time she spent the
night which [Child 7] described as awhile ago maybe a month or three
weeks ago. [Child 7] advised that [Child 2] told her about the incident
during the first few days, weeks of the fourth grade. [The interviewer]
asked [Child 7] if [Child 3] told her on a weekend and [Child 7] said
she thought it was because they were still in school.
[The interviewer] then asked about [Child 2]. [Child 7] stated that
[Child 2] spent the night with her in the third grade, but not in the fourth
grade. [Child 7] stated that the beginning of fourth grade is when [Child
2] told [Child 7]. [Child 7] advised that [Child 2] told her that
[Husbands] touched her when he was sleeping on the air mattress. [The
interviewer] asked [Child 7] where she and [Child 2] were when this
happened and [Child 7] stated that they were in the living room.
According to [Child 7], she was on the double air mattress with [Child
2] and there was extra room so [Husbands] laid down with them on the
mattress. According to [Child 7], [Child 2] told her that her dad had
touched her a couple weeks after it happened. [Child 7] advised that
she and [Child 2] were on the playground during recess when [Child 2]
told her. According to [Child 7], [Child 2] told her that she was touched
“down there” again where he touched [Child 3]. [Child 7] stated that
she does not know how because she was asleep the whole time. [Child
7] then went into further detail about what [Child 2] told her. [Child 7]
stated that [Husbands] was laying beside [Child 2] when he touched her
down there, so she rolled over. [Child 2] then told [Child 7] that when
[Husbands] was getting up, he put his hand down and touched [Child
2’s] butt. [Child 7] then stated that [Child 3] told her that [Husbands]
touched her with two fingers beside her private. According to [Child
7|, she and [Child 2] were on the air mattress in the living room when
this happened. [The interviewer] then presented [Child 7] with an
anatomically correct female drawing (front and back). [Child 7] then
documented with a marker two areas on the front and two areas on the
back where both [Child 3] and [Child 2] disclosed that they were
touched.
[The interviewer] then asked [Child 7] how the talk went with [Mother
7]. [Child 7] stated that they were on a car ride and she told [Mother 7]
that [Child 3] and [Child 2] both said that they had been touched down
there. [Child 7] stated that [Child 1] moved to the couch after she got
touched. [The interviewer] asked [Child 7] what happened to make
53
{Child 7] and [Mother 7] talk about it. [Child 7] stated that [Mother 7]
was worried because no one wanted to spend the night at [Husbands’]
house anymore. [Child 7] informed [Mother 7] that it made [Child 3]
and [Child 2] feel uncomfortable because [Husbands] sleeps with them.
[Child 7] then told [Mother 7] that [Child 3] and [Child 2] told her that
they had been touched.'”
Det. Truitt testified about Husbands’ DELJIS Charge Summary (Ex. R-13)
noting that his conditions of bond included no contact with children under the age
of 18 except upon good cause shown such as his own children, because he was
charged with a crime involving child sexual abuse or exploitation.
Husbands!”*
Husbands testified at the Hearing that he worked for the MSD for seventeen
years: fourteen years as a teacher and three years as an administrator. During his
employment, Husbands and the MSD Board of Education signed numerous
employment contracts. His most recent contract was signed on December 16, 2014
and expired on June 30, 2016.'” According to Husbands, the contract contained a
termination clause that limited termination to good and just cause and granted
Husbands the right to a fair hearing before either the MSD Board of Education or a
designated hearing officer. Husbands further testified that if the MSD Board of
Education decided to terminate his contract, it needed to notify Husbands in writing
173 R at 1343-49 (Hr’g Tr. at 448-54) (reading portions of DOE Ex. 11.6-11.8).
174 Rat 1262-1327 (Hr’g Tr. at 367-432).
15 See R. at 1871-72 (Ex. P-3).
54
and prove the reasons for termination. If he was to be terminated, he should have
had a hearing before a Hearing Officer and the MSD Board of Education.'”
According to Husbands, the MSD Board of Education’s December 2015 notification
of non-renewal did not include a reason, the Board never gave him a reason, and
Husbands never had the opportunity for a hearing.
Husbands testified that he was aware of Child 6’s accusations, but denied ever
giving her notes.!”” Although he taught Child 6’s tenth grade Civics class, he never
had an opportunity to pass Child 6 notes because a Teacher Assistance for Mastery
(“TAM”) teacher helped plan and teach the class. According to Husbands, the TAM
teacher “essentially passed out most of the papers throughout the semester, when
39 66
[he] was teaching or when [he] was getting ready to introduce things,” “a lot of times
she graded” assignments, and helped instruct breakout groups.'”® Husbands testified
that the TAM teacher never saw any notes and “would strongly assert that she never
saw [him] give a note.”!”? Husbands testified he saw two of the notes.'*° He thought
the note about tutoring in the trailer was odd because it contained contractions and
he never uses contractions, and he did not have a key to a trailer.'®! Husbands
176 Rat 1283 (Hr’g Tr. at 388).
77 Contra supra pp. 35-40.
18 Rawle at 1286-87 (Hr’g Tr. at 391-92).
179 Rawle at 1287 (Hr’g Tr. at 392).
180 Tq. (shown notes and told had more notes).
'81 Td at 1288 (taught sixth grade writing rubric, very particular about writing, corrected
contractions in assignments, and never used contractions in emails).
55
testified that when he taught students outside of school hours he always made sure
that he was never alone with a student.'®? Husbands also found it odd that when he
collected notebooks, Child 6 never gave him her notebook. Husbands testified that
there was no need for him to give Child 6 assistance because she worked with Parisi
and she was a B student.
Husbands next responded to (and attempted to discredit) the testimony
concerning the incidents involving Child 5.'88 Husbands testified that Child 5 was
one of his students and when she was in high school and she repeatedly asked him
if she could babysit Child 7 and her brother. Husbands “always said no” because he
and Mother 7 “never went out.”!84 Husbands testified that Child 5 never babysat for
him while she was in high school. Husbands did not hire high school students to
babysit because it made him uncomfortable. It was only after she graduated that she
babysat. He did not know how he and Child 5 came into contact after she graduated.
Next, Husbands turned to Mother 1’s testimony.'®° He testified that Mother
1 is Husbands’ former sister-in-law. Husbands never had a good relationship with
Mother 1 and her husband, and he “sincerely did not like the family.”'®°
182 See R. at 1292-93 (Hr’g Tr. at 397-98).
183 See supra pp. 31-33, 40-41.
184 Rat 1291-92 (Hr’g Tr. at 396-97).
185 See supra pp. 7-9 (Child 1), 9-15 (Mother 1).
186 Rat 1295 (Hr’g Tr. at 400).
56
Husbands testified that Child 1 looked forward to coming over and spent a lot
of time at his house, as much as four nights a week during the summer and weekends
during the school year.'8? Husbands said he and Child 1 had a mostly positive
relationship, but he did not like it when she and Child 7 got into physical altercations
or when Child 1 never wanted to do what Child 7 wanted to do. According to
Husbands, Child 1 (not Child 7) always asked him to do activities with her and Child
7. Husbands admitted he laid on the air mattresses with the girls but said he always
laid next to Child 7, and “only when it was family.”!®8
Husbands claimed that Mother 1’s testimony that she and her family stopped
interacting with Husbands during spring break was “absolutely not accurate”
because they all went to Funland and she posted on social media about the trip.’
He also believed that he had hung out with Mother 1’s family but could not
remember specifics. Husbands believed that Mother 1 and Mother 7 conspired
against him, noting that only one month before Mother 1 accused him of being
inappropriate and his arrest, Mother | talked on social media about having a good
time while hanging out with Husbands’ and his family.'
187 Husbands claims that Mother 1 “kind of water[ed] that down,” but his testimony about how
often the children hung out is similar to Mother 1’s testimony. See supra pp. 9-10.
188 Rat 1296 (Hr’g Tr. at 401).
189 Rat 1297-98 (Hr’g Tr. at 402-03). Contra supra pp. 12-14.
199 Rawle at 1300-01 (Hr’g Tr. at 405-06).
57
Next Husbands addressed Mother 1’s testimony that she found it odd he texted
*1 According to
Child 1 during a family party about sleeping over at his house.!
Husbands, Child 7 asked him if Child 1 could sleepover. Husbands said it was okay,
but Child 1’s parents had to agree to let her sleepover.!? When he texted Child 1,
he was in the same room as Child 1, Child 7, and their brothers, and everyone was
on their phones. Husbands admitted the behavior was odd, but he thought it would
be funny to text Child 1 because it was like a TV commercial.'?? According to
Husbands, in the TV commercial, there was a family sitting around the table eating
dinner, and everyone was texting each other instead of talking. Husbands thought it
would be funny to reenact the commercial because the children were sitting in the
same room texting and not verbally communicating.!** Husbands testified that when
Child 1 saw his text she gave him a look because they were “in the same room, five
feet away from [each other].”!9° At some point after texting Child 1, he left the
kitchen and joined the adults in the other room. Similar to Mother 1’s testimony,
Husbands testified that while he was in the other room Child 1 came into the room
191 See supra pp. 10-12; see also R. at 959 (Hr’g Tr. at 124).
192 Husbands never denied Mother 1’s claim that Child 7 never spoke to Child 1 about sleeping
over.
193 Rawle at 1303-05. Husbands testified that he also texted with his nephew.
194 Husbands testified that he believed it was ridiculous for a family to sit together and just be on
their phones. R. at 1304.
195 Rawle at 1303 (Hr’g Tr. at 408).
58
to ask Mother 1 about sleeping over. According to Husbands, Mother | said
something like “[nJo, honey, or [n]o, sweetie, tonight is not good, or not tonight.”!”°
On the night of the incident with Child 1, Husbands said he heard a noise, saw
Child 7’s door was unlocked, went in and saw Child 7 sleeping on the floor and
Child 1 sleeping in the bed. Child 1 woke up and “got freaked out” when Husbands
covered her up. According to Husbands, Child 1 did not scream. Instead, Child 1
walked over and talked to Mother 7, Child 7 never woke up, and Husbands “went
right back to bed.”!*? Husbands testified that a screwdriver would not unlock the
bedroom door because it was too big to fit in the opening for the locking mechanism.
In response to testimony about Mother 7’s relationship with the mothers of
the alleged victims, Husbands testified that Mother 7 and the other mothers are
friends. According to Husbands, Mother 4 is Mother 7’s best friend; Mother 3 would
go out drinking with Mother 7; Mother 1 and Mother 7 would hang out; and Mother
2 is Mother 7’s coworker. Husbands stated that even though Mother 1 testified that
she never hung out with Mother 7, they did hang out. Further, according to
Husbands, while Mother 3 “flat-out denies ever hanging out with [Mother 7],”
Mother 3 and Mother 7 “got together for several weeks, a couple months before
196 Rat 1304 (Hr’g Tr. at 409). According to Husbands, Mother 1 testified that she and Child 1
went into a different room to talk about sleeping over. Jd. Contra R. at 959 (no mention of leaving
the room).
197 Rawle at 1307.
59
everything happened to [him].”'”? Husbands further testified that one night Mother
3 and Mother 7 went “bar hopping” with their daughters.!”? Husbands claimed
Mother 3’s testimony that Mother 7 called her at work and told her about the
accusations against Husbands is inaccurate.”°° According to Husbands, Mother 7
told him that Child 3 told Mother 3 that Husbands touched her, thus Mother 3’s
! In response to Mother 3’s
testimony differs from what Mother 7 told him.”
testimony that Mother 7 caught him looking up young women online, Husbands
testified that he never looked at young women online but that he had lots of friends
online and Mother 7 accused him of cheating.
Husbands testified that every allegation was false and that he never touched
any of the children.”°? He believes that the accusations were made because of his
custody battle with Mother 7 and because she was embarrassed that he caught her
cheating. Husbands noted that eight days after he caught Mother 7 cheating, the
198 Rawle at 1308-09 (Hr’g Tr. at 413-14).
199 Husbands testified that Mother 7 went to AA. R. at 1309 (Hr’g Tr. at 414). Husbands said he
knew that Mother 3 and Mother 7 hung out because Child 7 told him about “how she was hanging
out with [Child 3]” and Mother 7 told him she hung out with Mother 3. R. at 1312 (Hr’g Tr. at
417).
200 Supra p. 24.
201 Husbands also testified that it was strange when Child 3 referred to him by his first name during
the criminal trial because she had never done that before.
202 Husbands testified that he is not dating, trying to mess with women, or going after women
online. R. at 1316 (Hr’g Tr. at 421).
203 The PSB specifically noted in its Final Order that it did not find Husbands’ testimony that he
did not have inappropriate contract with Child 1 credible. IN RE E.H., No. 2017-01, at 8 (Del.
PSB) (R. at 2131-32).
60
criminal investigation began.” Husbands testified in detail about his wife’s alleged
cheating. Husbands and his family attended a baseball tournament in June 2015.
Late in the evening of June 14th into early morning of June 15th, Husbands
attempted to contact Mother 7 several times. Around 1:30 a.m., he went to the front
and then the back of the hotel to find her. As he walked out back, Husbands saw
Mother 7 parking a car and texting. Husbands said that he tried to take her keys and
phone because she had been drinking. Husbands claimed that when Husbands
reached for the keys, Mother 7 stabbed him with the keys. Husbands testified that
after this altercation, Mother 7 confessed to cheating on him. Then, on June 23,
2015, the police began contacting the alleged victims and their families.
Approximately four days after Husbands was arrested, Mother 7 filed for custody.
As a result of the accusations, Husbands lost his teaching and coaching jobs,
his contract was not renewed; his license was being revoked; his home was almost
foreclosed; he lost his camper; Mother 7 ruined his credit, opened credit cards, and
took money; he missed family trips and experiences; he and Child 7 are bullied; he
receives death threats; Child 7 is ostracized by Mother 7’s family; he cries daily; and
Child 7 and her brother cry more than they used to. Husbands and Mother 7 agreed
to a custody arrangement just prior to a custody hearing, which gave him 100 percent
custody of Child 7 and 50 percent custody of Child 7’s brother.
204 at 1320 (Hr’g Tr. at 425).
61
Kevin Dickerson A ffidavit”™
On the third day of the Hearing, Husbands submitted the sworn affidavit of
Kevin Dickerson. Dickerson is the current MSD Superintendent. Dickerson did not
testify and was not subject to cross-examination. His affidavit stated that Husbands’
contract concluded in 2016. He further stated that the MSD Board of Education
never made any findings nor drew any conclusions about Husbands’ criminal
charges. According to Dickerson, “[t]he District elected to not renew [Husbands’]
employment contract because of the pending criminal charges, not because it
concluded that [Husbands] ever committed a crime.”?°°
IV. STANDARD OF REVIEW
Pursuant to the Delaware Administrative Procedures Act (the “APA”), the
Court has jurisdiction to hear an appeal of an Administrative Board’s final order.”
When factual determinations are at issue, the Court “shall take due account of the
experience and specialized competence of the agency and of the purposes of the
basic law under which the agency has acted.” On appeal, “the Court is not
authorized to make its own factual findings, assess credibility of witnesses or weigh
205 Rawle at 1873-74 (Ex. P-4).
206 Rawle at 1873 (Ex. P-4).
207 29 Del. C. §§ 10102(4), 10142(a), 10161(a)(46).
208 29 Del. C. § 10142(d). See Hoopes v. Del. Council of Real Estate Appraisers, 2006 WL
3308203, at *1 (Del. Super. 2006) (“The Court does not re-weigh evidence, nor does it substitute
its judgment for the factual determinations made by the Board or Council below.”).
62
the evidence.””°? The Court’s limited appellate review consists of examining the
administrative record to determine whether substantial evidence supports the
Board’s findings of fact and conclusions.”!° “Substantial evidence is evidence which
affords a substantial basis of fact from which the fact in issue can be reasonably
inferred.”?!! Ifthe Court finds the Board’s findings and conclusions are “based upon
substantial evidence and there is no error of law, the board’s decision must be
affirmed.”?!?
V. CONTENTIONS
On appeal, Husbands asserts several arguments. First, Husbands argues that
the PSB’s Final Order is not supported by substantial evidence because it rests
entirely on hearsay.?!3_ Second, Husbands maintains that the PSB committed legal
error in finding that he was terminated or dismissed from his employment,”"* and
lacked substantial evidence to support its finding that he was terminated or dismissed
because he engaged in sexual offenses against a child.*’> Third, Husbands argues
209 Sokoloff v. Bd. of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. 2010). It is settled law
in Delaware that the Board has the discretionary authority to determine witness credibility and
“choose the evidentiary weight to be accorded to a witness’ testimony.” McCormick v. Bd. of
Educ. for State, 1998 WL 960732, at *4 (Del. Super. 1998).
210 Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965); see also General Motors Corp. v.
Freeman, 164 A.2d 686, 689 (Del. 1960).
211 McCain v. Del. Council on Real Estate Appraisers, 2009 WL 1515594, at *2 (Del. Super. 2009)
(citations omitted).
212 Sokoloff, 2010 WL 5550692, at *5 (citation omitted); see also PAL of Wilmington v. Graham,
2008 WL 2582986, at *3 (Del. Super. 2008).
713 Op. Br., E-file 62230374, at 5-10.
214 Tq. at 10-22.
215 Td. at 22-26.
63
that the Court should find the PSB has the authority to determine that the DOE
proceeded in bad faith with his license revocation and remand the matter to allow
the PSB to determine whether Husbands should be awarded attorney’s fees and
costs.7!®
V. DISCUSSION
A. The PSB’s Final Order Does Not Rest Entirely on Hearsay
1. Introduction
Husbands argues the PSB’s Final Order is not supported by substantial
evidence because the DOE and the H.O. relied entirely on hearsay evidence.”"’
According to Husbands, all statements relating to accusations of misconduct he
committed against children are records of statements or testimony regarding
statements made outside of the Hearing, which the DOE offered for the truth of the
matter asserted.?!®
Under Delaware Rules of Evidence (“D.R.E.”) 801(c), “hearsay” is defined
as a statement that: (1) the declarant does not make while testifying at the current
trial or hearing; and (2) a party offers in evidence to prove the truth of the an
inadmissible statement. Under D.R.E. 802, hearsay is not admissible except as
provided by law or by the Delaware Rules of Evidence. Hearsay evidence is
216 Td at 26-30.
217 Op. Br. at 5-9.
218 Td at 5.
64
admissible in an administrative hearing,”!? but a board “may not rely upon such
evidence as the sole basis for its decision.”“*? As discussed below, a review of the
record makes clear that the PSB did not rely solely on hearsay in reaching its
decision, and its decision is supported by substantial evidence.
2. Prior Sworn Testimony of the Alleged Child Victims
As noted above, at the Hearing, the DOE introduced the prior sworn testimony
of the four young girls who testified against Husbands at his criminal trial.”! On
appeal, Husbands preliminarily argues the DOE offered no evidence that these
witnesses were “unavailable” under D.R.E. 804(b)(1),”” and therefore, their
testimony was inadmissible hearsay. First, this argument ignores well-settled law
providing that hearsay evidence is admissible in administrative hearings. And
second, a review of the Record reveals that Husbands never objected to the
219 See Designs v. Willey, 2011 WL 2535794, at *3 (Del. Super. 2011). “The purpose of allowing
Boards to accept evidence that would not normally be allowed in a trial setting is to free the boards
and commissions from technical rules preventing the invalidation of administrative orders on
appeal when such evidence was presented before them.” Jd.
220 Larkin v. Gettier & Assoc., 1997 WL 717792, at *3 (Del. Super. 1997) (citing Geegan v.
Unemployment Comp. Comm’n, 76 A.2d 116, 117 (Del. 1950)); see also LaVelle v. Kent County
Personnel Admin. Bd., 1997 WL 719134, at *8 (Del. Super 1997). Basing a decision only on
hearsay is plain error and an abuse of discretion. See Liberto v. Delaware Violent Crimes
Compensation Bd., 1992 WL 52193, at *2 (Del. Super. 1992).
221 NOE Ex. 9. The four young girls were cross-examined by Husbands’ counsel.
222 See Op. Br. at 6. D.R.E. 804(b)(1) states, in pertinent part: (b) Hearsay exceptions. The
following are not excluded by the hearsay rule if declarant is unavailable as a witness: (1) Former
testimony. Testimony given as a witness at another hearing of the same or different proceeding, .
.. ifthe party against whom the testimony is now offered . . . had an opportunity and similar motive
to develop the testimony by direct, cross or redirect examination.
65
admission of the prior sworn testimony based on the availability of the child
witnesses.2> Rather, Husbands raised only a general hearsay objection:
Husbands’ Counsel: “First I would like to . . . lodge an objection for
the record. To the extent that there are only people remaining on the
list for the State’s testimony who are giving statements of statements,
the entirety of the State’s case is made of hearsay and there can be no
conclusions made by administrative tribunal on the basis of hearsay.
It seems those are the only people left on the witness list. And I
wanted to make that observation now and renew it at the end, and I
will continue with my cross examination... .”
DOE’s Counsel: “And I would like to state for the record that we will
be entering into evidence sworn testimony that has been cross examined
from a trial and that is not hearsay. It is absolutely not hearsay and
that will be entered. And the witnesses are all witnesses that have full
knowledge of what happened in this trial and through their daughters
that this is not just hearsay. And the strict rules of evidence do not
apply... .”
Husbands’ Counsel: “Continuing with the cross examination.”
223 Nowhere in the Record leading up to the Hearing, or during the Hearing, did Husbands cite
D.R.E. 804(a) or D.R.E. 804(b)(1), or object on grounds that the DOE failed to establish that the
children were “unavailable.” See Ans. Br., E-File 62297737, at 12; see also Husbands’ Letter, E-
File 63155168 (Apr. 10, 2019). Despite the DOE’s argument at the Hearing that the sworn
statements were not hearsay or fell under an exception to the hearsay rule, the H.O. ruled that the
prior sworn testimony was hearsay, but considered the testimony anyway because of the
abundance of non-hearsay evidence in the record. See R. at 2018-20 (H.O. ruling). The PSB
considered the DOE’s argument that the children’s prior sworn testimony constituted out-of-court
statements of abuse under 11 Del. C. § 3513. The PSB noted that under § 3513(b)(2), an out-of-
court statement may be admitted if the child is found to be “unavailable” to testify on the grounds
that there is a “[s]ubstantial likelihood that the child would suffer severe emotional trauma from
testifying at the proceeding” and the statement “is shown to possess particularized guarantees of
trustworthiness.” R. at 2130-31. The PSB also noted that pursuant to 11 Del. C. § 3513(c), a
child’s unavailability to testify “must be supported by expert testimony.” R. at 2130-31. Because
the DOE offered no expert testimony to support that the four children were “unavailable,” the PSB
found that the hearsay exception under § 3513 did not apply. The PSB considered the girls’
testimony nonetheless because that evidence was not the sole basis for its decision. Jd. at 2131.
224 See R. at 976-77 (emphasis added); see also Husbands’ Letter, E-File 63155168 (Apr. 10,
2019).
66
D.R.E. 103 states:
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial right
of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it is apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent from
the context.”*°
Thus, Husbands may only claim error on appeal if the ruling to include the evidence
affected a substantial right of his,””° he timely objected, and he stated the specific
ground, unless it was apparent from the context. Husbands failed to state the specific
ground of “unavailability” and it was not apparent from the context. His violation
of D.R.E. 103(a)(1)(B) denied the DOE the opportunity to issue a proffer as to the
children’s unavailability and offer expert testimony as required under 11 Del. C. §
3513, or in the alternative, to call the minor children to testify live at the Hearing.
Husbands failed to present a claim of error on this issue.””’ Turning to Husbands’
225 In Appellees Answering Brief, the DOE incorrectly quotes the previous version of D.R.E. 103,
which was amended in 2017 to its current version.
226 The alleged error did not affect a substantial right of Husbands given all the other evidence
supporting the PSB’s decision.
227 The alleged error did not affect a substantial right of Husbands given all the other evidence
supporting the PSB’s decision. See Moss v. State, 2017 WL 2806269 (Del. 2017). In Moss, a
criminal case involving a much higher burden of proof (beyond a reasonable doubt as opposed to
preponderance of the evidence), the Delaware Supreme Court rejected an argument similar to the
one Husbands makes here. In Moss, the Delaware Supreme Court held that the admission of an
unavailable declarant’s text messages in a criminal trial was not reversible error where the
67
next argument — that the DOE’s case, and by extension the PSB’s decision, rests
entirely on hearsay evidence, it does not. Not even close. Husbands’ argument in
this regard ignores the substantial non-hearsay evidence supporting the PSB’s
decision, including, inter alia, compelling corroborative evidence of the non-hearsay
portions of the of the mothers’ Hearing testimony. To illustrate, below the Court
has taken the mothers’ Hearing testimony and excluded statements made to the
mothers and left in the mothers’ responses to others’ statements and events. In other
words, the Court has excluded statements that were, assuming arguendo, offered by
the DOE for the truth of the matter asserted, and left in testimony for the sole purpose
of showing the effects on the listener (non-hearsay).””
3. The Mothers’ Non-Hearsay Hearing Testimony
Mother 1?”
e Beginning in the Spring of 2014, Mother 1 was upset because she did not
understand why Child 1 no longer wanted to go to Husbands’ house. This
created tension, which grew to the point where Mother | and Child 1 argued
and Mother 1 would “kind of make [Child 1] go.”
defendant raised a global hearsay objection at trial and was not significantly prejudiced because
substantial evidence supported his conviction. /d. at *4-5.
228 See Estate of Rochester v. Reyes, M.D., 2015 WL 7823132 (Del. Super. 2015) (holding out-of-
court statements offered to show their effect on listener is “nonhearsay” and admissible if not
barred under D.R.E. 403); see also Sanabria v. State, 974 A.2d 107 (Del. 2009); Atkins v. State,
523 A.2d 539 (Del. 1987).
229 Rat 1986-89 (H.O. summary); see also R. at 955-86 (Hr’g Tr. at 120-51).
68
In December 2014, things started to become strange when Child 1 did not
want to go to Husbands’ house for a sleepover, Mother 1 told Child 1 she did
not have to go. That night, when Child 1 started to cry, Mother 1 asked what
was going on. Child 1 told Mother 1 why she was crying and why she did not
want to go to Husbands’ house. In response, Mother 1 was in shock. Mother
1 asked Child 1 how Husbands touched her. Child 1 responded. After calming
Child 1, Mother I told her husband what Child 1 told her. Child 1 told Mother
1’s husband the same thing she had told Mother 1.
After this, Mother 1’s children did not go to Husbands’ house from that point
until April 2015.
In April 2015, when Mother 1 dropped Child 1 off for a sleepover with Child
7 at Husbands’ house, Mother 1 told Mother 7 that Child 1 was not
comfortable around Husbands. The following morning, Mother 1 told Mother
7 what Child 1 had told her about Husbands touching her. Mother 1 and her
husband confronted Husbands and told him everything that Child 1 had told
them.
Mother 1 testified that her children never went back to Husbands’ house after
that confrontation, and Mother 1 and her family cut all ties with Husbands.
Mother 1 testified she was present when Mother 7 contacted Child Protective
Services.
69
e Family Services investigated Mother 1 and her husband for not reporting the
incident involving Husbands and Child 1, and Mother 1 and her husband were
cleared.
e Mother 1 testified that Child 1 had to go to the CAC to be interviewed. While
Child 1 was interviewed, Mother 1 was in the building but was not allowed in
the interview room during Child 1’s interview.
e Mother 1 testified that Child 1 was called to testify at Husbands’ criminal trial
and it was extremely difficult for Child 1. Child 1 went to counseling shortly
after the criminal trial and was still in counseling as of the time of the
Hearing.”*°
Mother 2”?!
e Mother 2 testified that she received a call from Det. Truitt in 2015. In
response to that call, Mother 2 took Child 2 to the CAC to be interviewed.
Mother 2 was in the building during her daughter’s interview but was not in
the interview room while Child 2 was interviewed.
e Following Child 2’s CAC interview, the interview team talked to Mother 2
about what Child 2 alleged against Husbands. In response to those
230 Rawle at 971-72 (Hr’g Tr. at 136-37).
231 Rawle at 1039-67 (Hr’g Tr. at 204-32).
70
conversations, Mother 2 “completely lost her mind” and needed an hour to
collect herself before talking to Child 2 in the car on the way home.
e During the car ride, Mother 2 told Child 2 that men are not allowed to touch
her in her vaginal area and that it was not okay for anyone to do that. Mother
2 also told Child 2 that what Husbands did was a crime and he would pay for
it.
e Mother 2 testified that Child 2 received counseling and that the ordeal was a
strain on the family. Mother 2’s husband also attended counseling.
e Mother 2 advised Child 2 to be cordial with Child 7 during Husbands’
criminal trial but to stay away and not be involved with Child 7.
Mother 3?”
e According to Mother 3, she received a phone call from Mother 7. In response
to that phone call, Mother 3 became very upset, started crying, left work,
picked up Child 3, and took her to State Police Troop 7.
e At Troop 7, Mother 3 told the police what Mother 7 had told her on the phone.
After Mother 3 and Child 3 left Troop 7, Mother 3 dropped Child 3 off, and
headed to Troop 4 where she spoke to another police officer.
e The CAC interviewed Child 3.
232 Rat 1989-91 (H.O. summary); see also R at 987-1014 (Hr’g Tr. at 152-79).
71
e Mother 3 had a conversation with Mother 7 during which Mother 3 asked her
if Husbands had inappropriately touched anyone else. Mother 7 responded.
e After this, Child 3 never went back to Husbands’ house for a sleepover.
e Mother 3 provided the detective assigned to investigating Husbands’ criminal
case with the names of other girls who could have been affected.
e Mother 3 testified that she was the first one to go to the police about Husbands,
and she knew there were other girls this happened to going back three or four
years.
Mother 47°?
e Mother 4 received a phone call from Mother 7. In response to what Mother 7
told her, Mother 4 instructed Mother 7 to call the police and the 800 number
hotline because Mother 7 was a mandatory reporter.
e Two days later, Mother 4 told Child 4 what Mother 7 had told her on the
phone. Mother 4 told Child 4 that she had nothing to worry about because
Child 4 had never been alone with Husbands. Child 4 said something in reply,
and in response, Mother 4 asked Child 4 why she had never told Mother 4
what happened with Husbands. In response to Child 4’s reply, Mother 4
scheduled a CAC interview the next day and Child 4 was interviewed.
33 Rawle at 1991-93 (H.O. summary); see also R. at 1016-39 (Hr’g Tr. at 181-204).
72
e Mother 4 feels Husbands cannot be a teacher or a principal and that what
happened is disgusting.
oe 2 ok
As the DOE correctly notes, and the Record supports:
the sworn testimony of the child victims was bolstered by the testimony
of four mothers who testified live before the Hearing Officer, providing
their own first-hand impressions of the devastation they witnessed in
their daughters as a result of Husbands’ [conduct]. These women
described how Husbands’ actions hurt their families causing shock,
sleeplessness, distrust, and the need for counseling.”*4
In its Final Order, the PSB stated that the mothers’ Hearing testimony concerning
their daughters’ emotional responses and need for counseling after Husbands had
unlawful sexual contact with their daughters “lent additional credence to the girls’
testimony.””°> The Court agrees and notes that the mothers’ reactions and actions
(which are not hearsay) not only strongly corroborate the children’s claims against
Husbands, but constitute in their own right substantial evidence of unlawful sexual
contact with minors by Husbands.
Stripped of hearsay, the undisputed evidence established that in response to
what Children 1-4 told them, Mother’s 1-4 were upset, took their young daughters
to be interviewed by the CAC, allowed them to be interviewed by the police, and
permitted them to testify at Husbands’ criminal trial. The mothers did so knowing
234 Ans. Br., E-File 62297737, at 14-15 (internal citations omitted).
235 Rawle at 2132.
73
that their children would be extensively questioned about the accusations and that
their credibility would be challenged through cross-examination in front of a jury.
They knew their young daughters would have to describe in painful detail what
Husbands did to them and how it made them feel. This highly relevant and
compelling non-hearsay evidence, standing alone, is substantial evidence supporting
the PSB’s decision.
But there is much more. In addition to the non-hearsay evidence presented
through the mothers’ testimony. There is also the non-hearsay evidence of Child 7’s
statements from the CAC interviews.”*° The statements Child 7 made in her CAC
interviews (that were admitted as non-hearsay evidence in Husbands’ criminal trial
pursuant to 11 Del. C. § 3507 and D.R.E. 801(d)(1)(C)) were in the record before
the H.O., and Child 7 testified (at Husbands’ request) and was available for cross-
examination at the Hearing. Pursuant to D.R.E. 801(d)(1)(A), a declarant-witness’s
prior statement is not hearsay if the declarant testifies and is subject to cross-
examination about a prior statement, and the statement is inconsistent with the
declarant’s testimony.
236 See supra pp. 51-54.
74
B. Husbands was “Terminated or Dismissed” Pursuant to 14 Del. C. § 1218(b)(2)
for Sexual Offenses Against Children
Husbands argues that the non-renewal of his contract does not constitute a
“termination” or “dismissal” under 14 Del. C. § 1218 and, even if it does, there is no
substantial evidence to support the PSB’s finding that he engaged in sexual offenses
against children. Husbands claims that if the PSB’s Final Order is permitted to stand,
“then the mere accusation of criminal activity would be sufficient to end a licensee’s
career, and in fact will end a licensee’s career in virtually every case.”?3”
Pursuant to 14 Del. C. § 1218(b)(2), one cause for revocation is if a license
holder “[i]s terminated or dismissed for a sexual offense against a child.””2* In order
for a license holder to be disciplined under 14 Del. C. § 1218(b)(2), the DOE is
required to prove by a preponderance of the evidence that: (1) the license holder
was terminated or dismissed; and (2) the termination or dismissal was for a sexual
offense against a child.
1. Terminated/Dismissed
In support of Husbands’ argument that he was not “terminated” or
“dismissed,” he asserts (without citation to any case law) that the plain meaning of
“terminated” and “dismissed” required his employer, the MSD, to take “some
affirmative action to remove him from his position or discontinue his
237 Op. Br. at 12.
238 14 Del. C. § 1218(b)(2) (2017).
75
employment.””°? He further asserts that “[a] contractual expiration should not be
tantamount to termination or dismissal.?“°
The terms “terminated” and “dismissed” are not defined in Chapter 12. As
the H.O. correctly noted, under Delaware law, “undefined words in a statute must
be given their ordinary, common meaning””*! and “words and phrases should be read
with their context.”*4? As the H.O. also correctly noted; in the context of this case a
licensure disciplinary action; “terminate” means to “discontinue the employment
of 3 and “dismiss” means “to remove from position or service.”*“4 As explained
below, by refusing to renew Husbands’ contract, the MSD “terminated” Husbands’
employment under 14 Del. C. § 1218(b)(2). And contrary to Husbands’ argument,
although neither the statute nor Husbands’ contract requires that termination involve
an “affirmative act,” the MSD Board of Education’s decision not to renew
constitutes such.
Under Paragraph 5 of Husbands’ contract,?*> the MSD Board of Education
was required to notify him in writing no later than six months prior to the expiration
239 Op. Br. at 11. Husbands cites to no legal authority supporting this argument.
240 Op. Br. at 11.
241 11.0. Decision at 39 (R. at 2011) (citing New Castle Cnty. Dep’t of Land Use v. Univ. of Del.,
842 A.2d 1201, 1207 (Del. 2004)).
242 1 Del. C. § 303.
243 H.O. Decision at 39 (citing MERIAM-WEBSTER DICTIONARY, http://www.meriam-
webster.com/dictionary/terminate).
244 Td. (citing MERIAM- WEBSTER DICTIONARY, http://www.meriam-
webster.com/dictionary/dismiss).
*45 Paragraph 5 of Husbands’ employment contract states:
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of the contract of its intent not to renew the contract. If the MSD Board of Education
failed to notify Husbands of its intent not to renew, Husbands’ contract would have
been automatically extended for one year. Although Husbands’ contract provides
requirements for terminating the contract, including a termination hearing, such
requirements do not apply if the MSD Board of Education decides not to renew the
contract.
Under Paragraph 6 of Husbands’ contract, the MSD Board of Education “shall
not terminate [the contract], prior to the expiration date, except for good and just
cause and shall provide the opportunity for a fair hearing before [the MSD Board of
Education or its hearing officer].” The termination of Husbands’ contract occurred
at the expiration of the contract, not prior to the expiration of the contract. Had it
been the latter, Husbands would have been entitled to “a written statement of the
reasons for termination” or a termination hearing under Paragraph 6. However, by
the express terms of Husbands’ contract, he was not entitled to a termination hearing
because the contract was not terminated prior to the contract expiring in June 30,
2016.
Expiration of Agreement. Failure on the part of the Board or the Administrator
to notify the other in writing by certified mail, no later than six (6) months prior to
the expiration of the Agreement, of either party’s intent not to renew the
Agreement, will automatically result in a one year extension of the existing
Agreement.
See R. at 1871-72 (P-3) (Husbands’ School Administrators Contract).
77
The MSD Board of Education acted under Paragraph 5 of the contract in
December 2015, six months prior to the contract’s expiration. It discontinued
Husbands’ employment (and removed him from service as an administrator) by not
renewing his contract after it expired on June 30, 2016. Through Dr. Walmsley’s
December 22, 2105 letter to Husbands, Husbands was notified that the “Milford
School District Board of Education is informing [Husbands] that [his School
Administrator Contract] will not be renewed beyond the expiration date.” By virtue
of this notice, Husbands’ employment with the MSD was discontinued effective
June 30, 2016. Absent the action taken by the MSD, Husbands would have been
employed at least through June 30, 2016. Consequently, Husbands was terminated
and dismissed from service. The non-renewal caused a cessation of employment
and, therefore, constitutes a termination or dismissal under 14 Del. C. § 1218(b)(2).
2. Sex Offenses Against Children
Husbands argues that the PSB lacked substantial evidence to support its
determination that he was terminated because of sexual offenses against children.
The Court disagrees. There is substantial evidence to support the PSB’s finding in
this regard. Shortly after Husbands was arrested and charged with sexual offenses
against children, Dr. Kohel and Dr. Walmsley learned of the charges from
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DELJIS.“* Four days after Husbands was charged, Dr. Walmsley notified Husbands
he was suspended without pay because of “misconduct which is the subject of a
pending police investigation.”*’7 According to Dr. Walmsley, Husbands’
suspension was based solely on the charges and was for the safety of students. The
then-Secretary of Education automatically suspended Husbands’ Continuing
License and Standard Certificates effective the date of Husbands’ arrest. That order
indicates that Husbands’ was arrested and charged with sexual offenses again
children under the age of thirteen.”“8 Dr. Kohel, who signed Husbands’ contract as
the Executive Secretary of the MSD Board of Education,” testified that Husbands’
contract was not renewed because of his pending criminal charges — sexual offenses
against children — and bond conditions prohibiting Husbands from having contact
with persons under the age of eighteen and MSD property. Dr. Walmsley testified
that Husbands’ contract was not renewed because Husbands’ pending criminal
charges prevented him from working. Both Dr. Kohel and Dr. Walmsley testified
there were no staff or budget cuts, and Dr. Walmsley testified he was not aware that
246 See supra pp. 42, 44 and note 2. As previously noted, the Notice from DELJIS contained the
Affidavit of Probable Cause. “Probable Cause” exists where the facts and circumstances within
the arresting officers’ knowledge and of which they have reasonably trustworthy information are
sufficient in themselves to warrant a person of reasonable caution to believe that an offense has
been committed. See Tolson v. State, 900 A.2d 639, 643 (Del. 2006) (citations omitted) (emphasis
added).
247 See R. at 1661 (DOE Ex. 15).
248 See R. at 1664-65 (DOE Ex. 18.2-18.3).
9 See R. at 1872.
79
Husbands had any performance issues. The MSD Board of Education could and did
draw reasonable conclusions based on the Complaint and Warrant, and the Affidavit
of Probable Cause provided with the DELJIS report.”°° It concluded that Husbands
engaged in unlawful sexual contact with children under the age of thirteen, he could
not be around children or be on MSD property because of the criminal charges and
his bond conditions, and for the safety of students, he had to be terminated or
dismissed. Under 14 Del. C. 1218(b)(2), the DOE was required to prove by a
preponderance of the evidence that Husbands was terminated or dismissed for a
sexual offense against a child. The preponderance of the evidence makes clear that
this was the exact and only reason Husbands’ contract was not renewed.”>!
250 See R. at 1459-62 (DOE Ex. 14.2-14.6).
251 The Dickerson affidavit submitted by Husbands to refute the claim that he was not terminated
or dismissed for a sexual offense is of little probative value and cannot negate or diminish the
wealth of evidence to the contrary. Dr. Dickerson did not testify at the Hearing, although the H.O.
continued the hearing to allow for his attendance. He was not the superintendent when Husbands
was suspended by the MSD or when the MSD Board of Education decided not to renew his
contract. His affidavit is silent as to whether he had access to the information upon which the
decision not to renew was based on or played a role in the decision making process. His lack of
personal knowledge renders his affidavit useless. See Lundeen y. Pricewaterhouse Coopers, 919
A.2d 561 (Del. 2007). And last, to the extent Dr. Dickerson offers his opinion that 14 Del. C.
1218(b)(2) required the MSD Board of Education to conclude Husbands committed a crime before
it could elect not to renew his contract, there is no such requirement in the statute, and Husbands
has acknowledged that 1218(b)(2) does not require a conviction. See R. at 2017 (H.O. Decision,
at 45).
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C. Husbands’ Claim that the DOE Acted in Bad Faith and Therefore, the Court
Should Remand this Matter to the PSB
Husbands’ final argument is that the DOE knew it had no basis to proceed on
his license revocation and, therefore, acted in bad faith. Consequently, Husbands
argues that the Court should remand this matter to the PSB so that he may file an
affidavit of attorney’s fees and costs. According to Husbands:
As an administrative tribunal, this Court should find that the PSB has
the broad equitable authority that is said to be held by other tribunals
and quasi-judicial entities to fulfill the purposes of its operating
statute.*°? Here, the broad grant of authority provided by the General
Assembly to the PSB is that the PSB is to afford a licensee a full and
fair hearing.”*? A hearing is initiated without factual or legal support
cannot be fair, and the PSB should exercise equitable authority to
address that fundamental lack of fairness and award fees and costs to
[Husbands] Delaware courts have shifted fees when parties file
frivolous motions.?*4
Husband’s claim that the DOE “had no basis” to move forward with the
revocation and acted in bad faith by doing so is unsupported in the Record and strains
credibility. A bad faith claim is a serious claim, not a Hail Mary,” and after
thoroughly reviewing the entire Record the Court finds that the DOE established by
a preponderance of the evidence that Husbands engaged in a sex offense against a
252 See generally Brice v. State of Delaware Dep’t of Correction, 704 A.2d 1176 (Del. 1998).
25314 Del. C. § 1218(k).
254 See Op. Br. at 28 (citing In re Shawe v. Elting LLC, et al., 2016 WL 3951339, at *1 (Del. Ch.
2016)).
255 A Hail Mary pass is defined as “a long forward pass in football thrown into or near the end
zone in a last-ditch attempt to score as time runs out — often used figuratively.” See MERRIAM-
WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/Hail%20Mary.
81
child.°° Moreover, a review of the Record refutes Husbands’ argument that the
“[H]earing was initiated without factual or legal support” and there was a
“fundamental lack of fairness” in the revocation process.”>’
Finally, the Court need not address Husbands’ argument that the PSB has
“broad equitable authority””°® because, based on the Record, there was no bad faith
and there is no reason for the Court to remand.
256 See 14 Del. C. § 1218(k). Section 1218(k) provides, in pertinent part: The burden of proof in
a license disciplinary action shall be on the agency taking the official action to establish by a
preponderance of the evidence that the license holder has engaged in misconduct as defined by
subsection (a) and (b) of this section .. . .” Subsection (b) includes termination or dismissal for a
sexual offense against a child. 11 Del. C. § 1218(b)(2).
257 Reading Husbands’ briefing, it is as if he has a different Record before him than the one before
the Court. He appears unable to accept that the H.O. and the PSB did not find him or his claims
of conspiracy and witness coaching credible in light of all the evidence. It is well-settled Delaware
law that, on appeal, the Court will not address issues of witness credibility or make its own factual
findings. Rather, the determination of witness credibility rests with the Board, which can choose
the evidentiary weight to be accorded each witness’ testimony. See McCormick v. Board of Educ.,
1998 WL 960732, at *4 (Del. Super. 1998).
258 Op. Br. at 28.
82
VI. CONCLUSION
For the reasons explained above, the Court finds that the PSB Final Order is
supported by substantial evidence, is not based solely on hearsay evidence, and is
free from legal error. Accordingly, the PSB Final Order is AFFIRMED.
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/ TARR I urden; President Judge -
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IT IS SO ORDERED.
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Original to Prothonotary
ce: Anthony N. Delcollo, Esq.
Katherine Witherspoon Fry, Esq.
G. Kevin Fasic, Esq.
Patricia A. Davis, DAG
83