Children’s deaths followed warnings in family courts
In at least five cases, officials were told of potential dangers
As Kevin Cox labored to breathe, Nicole Bauer wrestled with a grave decision: whether to watch her boyfriend die, or call 911.
It was Valentine’s Day, and the couple were in Room 238 of the Berkshire Inn in Pittsfield, Mass. The night before, four days after Bauer’s 6-year-old son was found unresponsive in a bathtub in their
Troy residence, Cox and Bauer had written suicide notes and made a pact to die together.
While Bauer was sleeping, the 40-year-old Cox, who would later be charged with homicide in connection with the boy’s death,
had taken what he believed to be a fatal injection of heroin. But Bauer had been unable to follow through with killing herself.
Finally, Bauer called for help to save Cox’s life. It was her second 911 call in five days.
Earlier that week, Bauer had told a dispatcher in Troy that her son Davonte was unresponsive in the tub. Bauer told first responders the boy had drowned. But Davonte had bruises all over his body and dried blood in his mouth and nose — and no water in his lungs. Suffering from severe hypothermia, he remained on life support at Albany Medical Center Hospital for two days before dying.
By the time Bauer and Cox fled to Massachusetts, the mother’s story of Davonte’s purported drowning had unraveled. Cox has pleaded not guilty.
The tragic events leading to the death began taking shape months earlier in
Ulster County Family Court in Kingston, one of dozens of such courts across the state where decisions quietly shape the lives of tens of thousands of children each year.
In the years prior, the boy’s father, Freeston Paul, had called Child Protective Services alleging Cox was physically restraining Paul’s son to the point of making him cry. Then 4 years old, Davonte told caseworkers in Ulster County that Cox was pouring water on him to wake him up, according to his father, who showed them documentation that Cox, who had served three prison terms, had a criminal history that included domestic abuse.
None of that swayed CPS workers. And Ulster County Family Court Judge Marianne Mizel declined to help Paul track down the boy, according to a Family Court petition Paul wrote to the judge two months before his son died.
“The court is taking this situation too lightly,” Paul wrote to Mizel. “I’m concerned with my son’s mother’s mental state and the company and relationships she is keeping around him. She is not thinking rationally which I believe could put my son in harm’s way. … This is a 6-yearold boy’s life!!!”
The situation was not unique. In a six-month investigation of New York’s Family Court system, the Times Union reviewed thousands of pages of court records — which are generally not available to the public — and interviewed grieving parents, experts in the field and current and former court officials.
In five cases the newspaper focused on since 2014, a parent had filed a petition in Family Court alleging an ex-romantic partner was a danger to their child. In all five instances, judges or court referees delayed action and the child died in the care of the allegedly dangerous parent.
They included the deaths of 6-year-old Gabriella Collins of Syracuse in 2014; 2-year-old Jovani Lirurgo from Long Island in 2018; 3-year-old Autumn Coleman in Queens in 2019; and 8-year-old Thomas Valva of Long Island in January.
An absence of urgency
Davonte went missing with his mother last June, not long after kindergarten ended. Bauer secretively relocated to the 5th Avenue residence in Troy where the boy was found unresponsive in February.
Bauer’s abscondment violated a Family Court order, issued a month earlier, that granted Davonte’s father regular parenting time and required that Bauer live in Dutchess County, where Davonte attended school. But according to Paul, who lives in Ulster County, Mizel repeatedly said he — not Family Court — was responsible for tracking down the missing mother.
Former Albany Family Court Judge Dennis Duggan, who was twice named by his peers as
New York’s best Family Court judge, was perplexed by what the record reflects about Mizel’s handling of the case.
“That’s bullshit,” Duggan said in an interview. “I would have issued a warrant immediately.”
Family Court judges have broad powers, including issuing bench warrants for someone’s arrest if they violate a court order. But Paul said the judge overseeing his son’s case never mentioned invoking that authority in at least five appearances he made in her courtroom during the first seven months after his son vanished.
When Paul argued with Mizel to take his son’s kidnapping more seriously, he said, she threatened him with contempt of court.
“She said her hands were tied,” Paul recalled. “He’s been missing all this time, and all the judge would say was, ‘Get (Bauer) served.’ CPS hasn’t even found her. How am I supposed to get her served?”
Nicole Bauer and Paul split up when Davonte was 2; they were awarded joint custody. Bauer and Cox started dating about a year later.
Bauer violated orders requiring her to hand off Davonte for visitation, the father said. Citing excuses of illness, she also allegedly failed to show up to subsequent court appearances to answer those violations. Mizel would simply adjourn the court proceeding for 45 days, Paul said.
“You can buy that kind of excuse once,” Duggan said. “The judge’s response should be, ‘OK it’s Wednesday. The hearing will be next Monday — not 45 days from now.’ A lot of this is the judge just controlling the calendar and, by that, controlling the behavior of people. So they know they’re not going to get away with it.”
In the summer of 2018, Bauer took off with Davonte for an extended period without telling Paul, according to the father, but Bauer again faced little consequence from Mizel when she returned to the Hudson Valley.
Bauer disappeared a second time with her son in the summer of 2019. This time, Davonte never returned in the fall to begin first grade.
Duggan said in such a case, he would have told Bauer’s attorney, “Get your client here. And if not, I will have a warrant issued.” Duggan added that the Ulster County District Attorney’s office should have quickly issued a criminal charge of custodial interference after Davonte disappeared, a charge that could have eventually been upgraded to kidnapping.
“Within a week of the child not being returned, the local sheriff should have executed the warrant and brought the parent back,” Duggan said. The apparent absence of official action “sounds unbelievable to me.”
Weeks before Davonte died, Paul said he asked the Ulster County district attorney’s office to issue a kidnapping warrant. It’s unclear if the district attorney’s office, which has repeatedly declined to comment, ever followed through.
Mizel, who has also declined to comment on the case, was elected an Ulster Family Court judge in 1994 and will reach the mandatory retirement age of 70 in four years. Duggan, who declined to run for a third 10-year term at age 64, said he retired from Family Court in 2013 in part to avoid burnout.
“I’ve spent some time talking with a couple of my other colleagues that stayed on the bench, and it just confirmed I did make the right decision,” Duggan said. “Because they’re moaning and groaning that they wish they could be golfing, like me. You can get jaded and get tired.”
“So I don’t know if this judge got tired,” Duggan said of Mizel. “She’s been on the bench a long, long time. And so I can’t explain that. But it shouldn’t happen.” (Several lawyers involved with Ulster County’s Family Court told the Times Union that Mizel had a good reputation.)
Bauer also had made accusations in Family Court against Paul, who had a criminal record that may have raised questions for the judge. In 2008, five years before Davonte was born, Paul was one of 19 people arrested in a Kingston drug sales bus. He pleaded guilty to selling drugs and was sentenced to three years in prison.
Trouble ahead
The day their suicide pact fell apart in the Pittsfield hotel, Bauer had struggled with her fear that Cox would be mad if he survived and learned she had called for help. But after speaking on the phone to her father and a friend, Bauer made the call anyway, according to notes of an interview that a Pittsfield police officer conducted with Bauer after arriving on the scene.
She also told Pittsfield police about Davonte’s death several days earlier. In the aftermath,
Bauer said, she had told Troy police she’d been home when Davonte’s dire condition became apparent; in fact, she had only rushed home when Cox had called her.
She asked the Massachusetts police officer if she would get in trouble for make a false statement to Troy police. She began to cry as she acknowledged that she and Cox had been going through a rough time because of Davonte’s death, which had motivated their suicide pact, the police report states.
Cox survived the suicide attempt but lapsed into a coma. He recovered and was released from the hospital a month later. Cox was subsequently arrested April 30 at a residence in Ulster County and charged with second-degree murder.
According to a brief statement attached to the arrest paperwork, a Troy police sergeant said Cox had exposed the 6-year-old to “extremely cold temperatures for a prolonged time,” an accusation said to be backed by a police investigation and video-recorded statements from Cox. The murder count alleges “depraved indifference” — an accusation that Cox acted recklessly and caused a grave risk of death, but the killing may not have been intentional.
Matthew Hauf, chief assistant in the Rensselaer County district attorney’s office, told the Times Union that Bauer was part of a “still ongoing police investigation.”
cbragg@timesunion.com - 518454-5619