August of 2000 a 41 year old Marin County mother closed her small hair salon, secretly sold her condominium and fled Marin with her daughter. She left a good-bye note to her "second" mother begging forgiveness for not telling her of her plans to leave:
"Leaving you and my other friends is the last thing I ever wanted to do, however I've reached the end of my rope ... I'm so fearful of not being able to protect [my daughter]-she is so unhappy with the current arrangement and I don't see it changing. If anything the situation will probably get worse. I have no faith in the Marin County Court system ..."
For almost four years the mother had been embroiled in bitter, contentious Family Court disputes over paternity, an heirloom diamond ring, visitation, suspected physical and child sexual abuse, custody of the child and-money-and the lack of it!
The highly educated father of the child, who lived with his father, supported himself from money from a trust fund, and didn't work at a regular 9-5 job. She too was university educated, but had only earnings from her small hair salon and, like so many today, no medical insurance. They had known each other from childhood and had both married previously, he already had a daughter, their child was her first. The dream-come-true marriage quickly collapsed and they separated after two and a half months with her pregnancy-a major issue between them.
Judge Dufficy, the Family Court judge, denied the pregnant mother spousal support and having her attorney's fees paid by the father, although he did relent and awarded reimbursement for her medical expenses when the father ended the mother's medical insurance plan. He also ordered financial support as the pregnancy advanced to term. Visitation by the putative father (DNA testing to definitively establish paternity would not be available until after birth) was ordered within 8 hours of birth under the supervision of hospital nurses, and commencing 48 hours after birth, the father could visit 3 times a week for 45 minutes between 9 AM and 6 PM.
"[My daughter's] needs and welfare have never been the central focus and the system has wiped me out financially and physically. Through me and you too [my daughter] has known true, unconditional love-thank you for all you've done for her." the mother wrote to her friend before beginning her life of underground exile.
Caught!
Exactly what happened during the next three and a half years is unclear (the mother's Public Defender asked that the mother not be contacted) but from court documents it appears she and her child, under assumed names and false documentation, flew to San Diego, England, New Zealand, Argentina, Mexico, Canada and back to the United States where she lived in Montana, Louisiana, Vermont and then a small coastal village near Charleston South Carolina where she was arrested in early January of this year, on a Federal Warrant for "Unlawful Flight to Avoid Prosecution."
The Federal charge was backed by a Marin County complaint charging a violation of Section 278.5, Violation of Custody Order, a felony. Bail was set at $500,000 and although on May 13th, bail was reduced to $150,000 four months later, she, with no money, is still in jail.
The mother was arrested after an alert neighbor checking the Web Site of the Polly Klaas Foundation recognized photos of a missing child who had been "abducted" by a "non-custodial" mother. The local police acted swiftly and efficiently and caught her with her fiancŽ, a Canadian citizen, as they were getting gas in a filling station, their car loaded with boxes apparently ready to move from South Carolina.
When the officers arrested the mother she was agitated, began to shake, cry, and became hysterical. When questioned her response was, "Just give me a minute, I need time to think" and "to her fiancŽ, "Denis I'm sorry". The officer said to her "You had to know this day was coming" to which she partially shook her head and looked at the ground.
"You don't understand", she said, "I have papers that prove that [my daughter] should not be with her father ... please don't take her back to her father" The officer told her that it would be up to the court system in California where the daughter would be placed. Well, yes and no, this sympathetic police officer obviously had a limited understanding of how Family Court works in Marin County California.
After some hesitation, the mother led the officers to her daughter. She told the woman caring for the child, "I've been arrested and I'm sorry I lied to you, but I had to take [her] away from her father to protect her ... I was only trying to protect [her]." She tried to reassure her daughter, "...everything will be all right ... you do not have to go back to your father right now ... I promise everything will be all right. You will get to stay with your grandmother again for awhile."
Not quite! The mother, in jail now for five months, has not seen or spoken to her daughter as the child was transported to Marin and placed directly and unconditionally with the father by the Marin County District Attorney's Office. No one from the maternal side of her family, including the grandmother, has been allowed to visit the child.
An Indifferent Family Court
In the three Family Court hearings in January and one in February of 2004, there is no mention of any kind of report on the emotional and physical welfare of the child or her adjustment in the home of her father and grandfather.
The foundation document for the District Attorney's involvement in Family Court was filed on December 5, 2000 (more on this interesting document later) and clearly outlines the intention of immediately placing the child with the father when located. This document was re-filed on January 6, 2004 (the day of the mother's arrest) for a hearing the next day so that a signed custody transfer order could be obtained. Although several judges had been involved over the years, there had been no written order.
At the January hearing, the Assistant DA's declaration stated that the Family Court Judge had issued a final ruling on March 18, 2003 awarding custody to the District Attorney and the father of the child.
The summary of the March 18, 2003 hearing on that day "MOTION TO MODIFY CHILD SUPPORT, COMPENSATION AND FEES FOR FAMILY CODE SECTION 3028, ATTORNEY FEES AND COSTS (RESP)" was conducted by judge Vernon Smith and was indeed marked "final." No appearances by anyone. No pro forma certified letters to the mother's last address. A ruling crucial to a child's life is made, seemingly as an afterthought, a small detail among more weighty matters like compensation and attorney's fees. A FEDEX package would have gotten more consideration than the child and, a signature is always obtained for a package.
The Press
The arresting officers in South Carolina referred to the mother several times as a "non-custodial" parent, presumably having gotten that information from the Polly Klaas Foundation's web site and the Marin County District Attorney's investigators who provided that information to the foundation. A spokesperson for the Foundation told the Coastal Post that they rely on the District Attorney's staff for all information as to whether a missing parent might be custodial or non-custodial, and that, with regard to the home and a mother's motivation in leaving, we should contact the District Attorney.
The Charleston Post and Courier reported the case on January 7, 2004, "Parental abduction case leads to arrest on Island Of Palms. The last paragraph of the article was prominently quoted as a sub headline and attributed to the arresting police officer. "Authorities are coming from California to return the child to the state, but not necessarily to the father. That will be up to the court to decide."
In Marin, the Independent Journal reported the arrest on January 21, 2004, "Child abduction suspect is arrested in S. Carolina" and the arraignment was reported on January 28, 2004, "Kidnapping suspect set to enter a plea." Family court documents note, "[The] Petitioner [the mother] is in custody for kidnapping" and "Petitioner kidnapped the parties' minor daughter". These quotes show misinformation, a prejudicial inflation, exaggeration, and a misunderstanding of what the mother actually did.
"Kidnapping" and "abduction" by definition involve force and coercion which was not the case with this mother, who always had physical custody of her child since birth. Was she trying to spite the father of her child by sacrificing her home, her business, her family, her personal life? Or was she, as she wrote in her farewell letter, "at the end of her rope", that is, desperate, disgusted with the system in which she was trapped? As described in last month's Coastal Post, a San Francisco attorney wrote similar words in his appeals court brief explaining his actions in a civil case, "I lost faith in the Marin County Courts" He lost the appeal, but after two years, his complaint against Judge Dufficy was validated by the Commission on Judicial Performance.
One might speculate that the mother might not have felt she had time to wait two years to be notified by the Judicial Commission that "an appropriate corrective action" was taken-that is, if she had known of the existence of the commission.
Child Protective Service
In early 1999 both parents agreed to joint custody after an unsuccessful effort in Family Court by the father to completely transfer custody of the child from the mother based partly on the mother's having made three reports to Child Protective Service after consulting with her therapist and her daughter's pediatrician. Judge Dufficy rejected the switch in custody.
There is one report in the file from Child Protective Service (CPS) concerning reports of suspected child abuse and child sexual abuse. The child had not been "interviewed," so to speak, because CPS had not want to intrude into a pending custody evaluation by privately retained therapists appointed as the Court's expert witness. It is common wisdom that expert witnesses are not always expert and not always objective and would be expected to express views favorable to the person paying them-otherwise they would not have been hired in the first place. This seems like an abdication of responsibility by the agency responsible for protecting children. Would a police officer defer to a private detective investigating a suspected crime?
This case was, for all its rancor, confusion and contention, not involved in any way in the uproar and turmoil that began in 2000 over favoritism, bias and cronyism towards certain attorneys, therapists and evaluators in Family Court. The turmoil focused into a recall movement that failed, the resignation of a Court Commissioner, and forced Judge Dufficy to transfer himself, for reasons of stress and his health, to Probate and Civil Court. This case does, however, have the potential to provoke renewed complaints and criticism of Family Court for uncritically allowing the District Attorney's Office to intrude into its workings, unilaterally making major decisions with unalterable consequences, without formally considering the best interest of a vulnerable child.
Child Sexual Abuse.
Bearing in mind that although the court records available to the public at Civic Center are not always complete, they do offer revealing, useful snapshots of the workings of our court system. The files contain information that is sensitive and might prove embarrassing, nevertheless we are considering what might be a monstrous miscarriage of justice.
In the present case, the District Attorney's Office may or may not have been aware of the three separate instances in which the mother reported suspicion of child abuse, two for physical abuse or neglect and one for child sexual abuse. Child Protective Services was involved in the first two and reportedly closed their case with a referral to "mediation." The first involved bruises on the body of a toddler's body which, viewed alone, and without documentation, might easily be dismissed, but recorded and considered if there were additional referrals.
The second involves something more observable and objective, a swollen, blackened eye which the father apparently did not report, or have examined by a professional. What is noteworthy in this instance is that the black eye, occurred in a context of heightened critical awareness, in a "fishbowl" so to speak. A failure to report an uncommon injury to the other parent would be a cause for concern and, at a minimum, counseling and monitoring, although perhaps not official court action.
The reports of statements made by the child which led to suspicion of child sexual abuse were by the mother after conferring with a medical doctor, and by one of the mother's clients. They reported spontaneous statements made by the child of "a snake going into the hole" while holding her genital area and "holding the snake until it dies" etc. There was apparently no physical evidence to help interpret the two and half year old child's undeveloped, metaphorical language which might easily be interpreted as suggesting sexual activity. Or not. After all, snakes are part of all humanity's mythological heritage and there are bodies of knowledge of one kind or another, that include animals as part of humanities collective dream world or unconscious. Interesting and suggestive, but certainly not enough to support a criminal complaint.
Obtaining useful, credible information from a child, while difficult, is not impossible with a skilled experienced interviewer in a special setting. But its value in court would be a little above zero, unless recorded in such a way as to convince, and allow criticism, of the technique and the results. There is no indication that this was attempted except for a 20 minute interview by CPS. Children are easily influenced by adults who intentionally or inadvertently encourage "yes" or "no" answers to leading questions. Anyone who has ever trained a dog knows how hard it is to avoid broadcasting meaningful cues.
It is a dreadful thing to be falsely, mistakenly, or accidentally accused of any kind of crime, let alone a sexual crime that evokes disgust, revulsion and horror. It upsets most people to even briefly think of them. But they do occur, and, in those cases we know of, they are overwhelmingly committed by men. So there is a natural, perhaps biological and social bias against men. Not uncommonly, there is a an inclination blur, obscure and deny that anything ever happened since the consequences of recognizing and verbalizing the offenses are so utterly devastating. Lives have been ruined with murder, mayhem, suicide, prison sentences extreme emotional distress not uncommon.
We have all heard of reports of community hysteria with mass imprisonment based on bogus reports of child sexual abuse which include satanic rituals. The NY Times reported on May 20, 2004 on an instance in France in which several people were imprisoned for three years and their lives ruined. But these things do occur and they are hard to handle. Dealing with cases like these for thirty years without doubt contributed to the early death of Jeanette Prandi, the saintly Deputy Sheriff who has a street and a children's treatment center named after her.
In November 1999, Judge Dufficy ordered CPS to respond to a report made by the mother and a friend. It is not clear why a court order was necessary, but this action by the judge seems commendable. As noted above, a Social Worker wrote that CPS had been hesitant to interrupt and possible contaminate the custody evaluation that was in progress by a private therapist appointed as an expert evaluator by the court. The CPS memo outlines what seems to be a thorough review of the available information and reports the unremarkable results of a twenty minute forensic interview with the child.
The memo reveals that the first investigation was closed by CPS as inconclusive and, in a strange locution, that the Sheriff's Detective, "unfounded his investigation." It was reported that the Sheriff's office would not be opening a criminal investigation at that time, presumably on a separate investigation. The CPS investigation was found to be inconclusive and a recommendation made that visitation by the father (which had been suspended) be resumed, with supervision, until the results of the psychological evaluation by the private therapist were available.
The psychological evaluation, when it became available, provoked greater conflict, since the expert evaluator allegedly recommended that custody be removed from the mother and awarded to the father. According to a document filed by the mother's attorney, the father paid the evaluator $30,000 for the evaluation. The judge then agreed to an agreement between the mother and father that custody be joint and shared. Eight months later the mother, after careful preparation, fled with the child and went underground for over three years.
The District Attorney Takes Over
With the mother in hiding, a hearing was scheduled for January 5, 2001 An Assistant District Attorney presented a declaration requesting that custody of the child be granted to the District Attorney "to facilitate her return." This is apparently necessary to involve the federal police. The law states that the DA shall act on behalf of the court and shall not represent any party to the custody proceedings. That is, the District Attorney should be neutral and act impartially. So far, so good. The mother is clearly violating court orders. But the Assistant DA goes a little farther-too far-and requests authority to place the child in the home of her father because " ... [it] would be extremely traumatic ... to place her in foster care."
Placement of children is not a well known specialty of the District Attorneys Office. Introducing this into a routine request for authority violates the spirit of the law, it exceeds the scope of the request and preempts and limits action by Family Court. It was a mistake, a mistake that was overlooked or ignored for three and half years, and a mistake whose consequences continue to this day. It clearly creates the appearance of partiality.
The Assistant DA goes on to justify the change in custody and the placement of the child with its father in the routine request for authority, by citing psychological evaluations completed 13 months previously. Quote: "Also, the District Attorney's Office has examined the following documents and has made a determination that they (sic.) will NOT charge [the father] or [the grandfather] with any improper conduct relating to [the child] That is, that there is insufficient evidence to support the filing of criminal charges.
The Assistant DA goes on, "The District Attorney's Office has concluded that Petitioner [the mother] has made unsubstantiated claims against Respondent [the father]. Not only are these claims unsubstantiated, they appear to be quite suspect and the veracity of [the mother] is in question"
The Assistant DA in attacking the mother's credibility, is arguing a problem that has vexed the Family Court for months, unopposed, in a routine, ordinary, ex parte request for authority. "The child", we are told, " ... is not only NOT in fear of her father (or her grandfather) but that her relationship with her father is important to [her] well-being." No problem here, but what has this to do with getting authority to assistance to return the child?
The argument justifying the DA's placement plans is ended with a quote from the $30,000 evaluation:
"[T]he content and quality of the play continued to implicate [the mother] as a primary source of difficulty." [The mother's] observed behavior with [her daughter] supports this contention, as she did not seem able to support [her] in her distress [caused by the separation of her father] appearing more focused upon obtaining proof for her allegations ... Due to the mother's difficulties and the father's absence, [the child] is left without a caregiver who can help her organize her painful experience [namely the separation from her father]. etc." (added italics seem to be interpolations by Assistant DA)
The complete evaluation and other documents are currently being withheld from the mother's Public Defender as court hearings to obtain this information vital to her defense slowly proceed while she is in jail. It is not known if the behavioral analysis evaluation noted above was recorded for validation
In 2001, Judge Sutro too did not sign the order changing the mother's custody status, and, as noted, the March 2003 hearing was about money with no one in court except judge Smith and his staff. After three and a half years the order was finally signed on January, 6, 2004, the day after the mother was arrested in South Carolina. The child's welfare and interest was never given even lip service. Good intentions considered, in retrospect are not sufficient. Considering what is right for a child is a thoughtful process involving the important people in the child's life, not just lawyers and prosecutors.
The District Attorney's Office had, and continues to have, a clear conflict in declaring " ... they will NOT file charges ..." and then, in the same document, outlining plans to place the child with the people she absolved --- although she could hardly do otherwise.
But why would anyone expose his or her department to such a sudden potentially risky move? There is one notation in a brief by the mother's attorney calling to the court's attention apparent personal friendship(s) between District Attorney investigators and the father, so, the usual complaints of possible bias, cronyism and favoritism in the operation of the Family Court might be applicable in the DA's office too.
There was no urgency to specify where the child would be in addition to seeming to be heavy handed (and, perhaps underhanded) and unnecessary. The arrest and disappearance of the only mother she ever knew would certainly be presumed traumatic. Foster parents are motivated, trained and experienced with dealing with distraught children while Social Workers investigate and plan for their future. One wonders why Social Service was not involved here as it was in South Carolina? Is there some kind of conflict or competition going on?
Has the District Attorney's Office considered how it might handle any new complaint of abuse or neglect that might arise, real or imagined, regarding this child? Could it objectively investigate complaints that it never adequately investigated the home and the surroundings etc.? How common is this unwise policy? Has the County Council reviewed this policy?
It also seems clear that the Assistant DA's attack on the mother's veracity "for making unsubstantiated claims" is itself unsubstantiated and prejudiced. She reported bruises, an untreated, swollen, blackened eye and spontaneous statements made by a child. Another adult reported similar statements. This is not to say that anyone did anything wrong or improper. The reports were made in consultation with others and there is no indication that they were false or maliciously presented. Facts are facts whether they lead to conclusions or not, no matter where they originate. They need to be evaluated, not simply ignored or dismissed with contempt.
It is understandable that charges might not be filed that would convince a jury that a crime had been committed, but not having criminal charges pending is hardly a recommendation to be a custodian of a child. Placement with one of the adversaries in a long, bitter struggle without a home evaluation by a county Social Worker is a disservice to everyone involved, especially the father and the grandfather. It has placed them in a difficult position whether they recognize it or not.
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Bail
Since January, the mother's bail has been $500,000 dollars for Penal Code Section 278.5 Violation of a Custody Order-A Felony. There is no fixed amount set for a person who has custody who violates a custody order. Her bail was recently reduced to $150,000 which she is currently unable to make. The guideline amount in Marin set for a violation of Section 278 PC, a person who does not have custody of a child, is $50,000.
In Orange County the bail for 278 PC, a non custodial person, is $50,000, the same as Marin. In Orange County the bail for Willful Harm Or Injury To Child Likely To Produce Great Bodily Injury is $100,000, for Rape, $100,000, for Assault With a Semiautomatic Upon A Peace Officer $100,000, Assault With A Deadly Weapon Likely To Produce Great Bodily Injury $25,000, Assault With A Firearm is $50,000. Kidnapping For Ransom Or Extortion, For Robbery, and During A Carjacking, are all set at $1,000,000.
A similar case charged as a violation of 278.5 PC occurred in Marin a few years ago in which a mother took her child to France, a country the mother selected because it would does not routinely extradite persons to the US-she was lured to Spain to be returned home. She allegedly threatened to kill herself and the child as she believed her child had been sexually molested. Her bail was $100,000.
A Somewhat Similar Case
This case is somewhat similar to that of Carol Mardeusz, a single mother whose daughter was removed from her custody ten years, or so ago, in Sonoma County and given to the biological father with whom she never lived and never married. She complained constantly and bitterly about her treatment in Sonoma and other county courts.
She tried ineffectually to take her daughter out of school on two occasions in defiance of court orders. She was upset that her daughter was in danger in the home she was. As a result she spent six months in Marin County Jail including a month for a diagnostic evaluation in the California Institute for Women at Frontera, a state prison. Concern for her situation drew many supporters to the failed recall campaign against Judge Dufficy and the District Attorney. (For the record, the Coastal Post actively supported the District Attorney.)
Carol Mardeusz, was regarded my many (including this writer) as a bothersome gadfly, a tiresome disgruntled litigant. A few years ago her daughter found her step mother bleeding to death on her kitchen floor from internal injuries. She died later in the hospital. What happened to cause her death has never been established and as yet, no one has been charged in this suspicious death. But, this unhappy event makes Carol Mardeusz's fears for her daughter's safety suddenly more reasonable.
Carol is on probation, doing well and will be off in a year or so. She has not seen her daughter since 1996. One hopes that she will be able to establish a new and relationship with her daughter when she becomes an adult.
Something Needs To Be Done
Assistant District Attorneys are not hired because they are nice guys and gals, or because of their good looks although most of them are both and also friendly, pleasant people when they are not pointing their fingers at you in the witness box. They are expected to aggressively prosecute evidence of criminal conduct within the bounds of law and ethics to protect the public. In the case discussed above the Office seems to have entered new and unfamiliar territory and, confused, to have lost it's way. It seems to almost be on a personal vendetta against a woman who deliberately violated a Family Court order in the belief (rightly or wrongly) she was protecting her child.
Something must to be done to reduce the endless conflict in Family Court that only benefits the bottom lines of lawyers, therapists and consultants that depend on it, and exhausts, financially and physically the everyday normal people of Marin and pushes some of them to desperate measures, "at the end of their rope." This woman and her child cannot obtain justice in Marin County.
Late breaking news. The mother bailed out of Marin County Jail on May 24.
