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MARIN COUNTY'S NEWS MONTHLY - FREE PRESS
Bleak Prospects For Runaway Mom And Daughter;
Kaffkaesque Legal Situation
By Jim Scanlon
For seven months now a mother has not been allowed to see, talk to or contact her seven and a half year old daughter. She does not know where she is, or the condition of her health, or with whom she lives. She does not know what her daughter thinks has happened to her. She knows nothing.
She can not contact her ex-husband or anyone connected with him. She lives under the threat of a Family Court restraining order and can be arrested if she violates it. After five months in Marin County's Jail, her bail was reduced from $500,000 to $150,000 and she was released over the objections of the District Attorney, only because a stranger heard abut her, stepped forward and after speaking to her, provided the bail money.
She is unemployed although she may have a part time, low wage job soon. She cannot work at her trade because she has no studio and no clientele since she has not lived in Marin for three and a half years-not counting 5 months in jail-and it takes time to build a customer base.
She does have a husband, a hard working skilled craftsman she met "on the run," who had no suspicion that his fiance and her child were fugitives from a dysfunctional Divorce Court in Main County California. He survived the shock of her arrest on the east coast (and his own near arrest) and followed her west. They were married in the jail annexed to the Hall of Justice designed by Frank Lloyd Wright. Lots of people come to the Hall of Justice to get married, not too many came the way they did. He has a job and so far their relationship is surviving their strange adjustment to life in Marin County and a mother's single minded focus on seeing her missing child again
Like a Runaway Slave
What she did can be compared, in a small way, to what runaway slaves did not that many years ago, although there is little comparison with being an uneducated agricultural worker with a different colored skin adrift in a sea of strange white faces, some viciously hostile. The similarity is in escaping from an intolerable legal framework that frustrated and ignored her to the point of breaking, snapping psychologically, at the end of her rope, as she wrote in her farewell letter to a friend, to the point of letting go to free-fall somewhere, not knowing where, just not back "there." She didn't make it, and now things are much worse.
She is out of jail though, thanks to her Public Defender, and now has a new lawyer to assist her in dealing with the criminal charge pending. The charge, a violation of Section 278.5 of the Penal Code of California which is defined as "Deprivation of Custody." The Federal Warrant for her arrest was for interstate flight to avoid prosecution for Violation of Custody Decree, 278.5 PC, a charge known as a "wobbler," that is, that it can be filed as a misdemeanor or a felony and can result in imprisonment in a county jail for one year, or in state prison for 16 months, or two or three years.
What Did She Do That Was So Bad?
The Marin IJ printed 3 articles concerning this mother and her child with information from the District Attorney's Office: "Mother sought in Marin child abduction case."(8/2000), "Child abduction suspect is arrested in S. Carolina" (1/21/04), and "Kidnapping suspect set to enter plea"(1/28/04). The Charleston Post and Courier reported, "Parental abduction case leads to arrest on IOP (Island of Palms)" 1/704.
An investigator for the District Attorney's Office wrote in a court document that "...a criminal complaint and arrest warrant was issued for a violation of Penal Code Section 287.5 (sic!) violation of custody decree/child abduction. She obviously means 278.5 PC violation of a custody decree-but where did she get the "abduction" word? An article in the NY Times on July 24, 2004 notes the "kidnapping" and "abduction" of an Egyptian man held hostage in Baghdad. Words are important! So are numbers and codes cited in official documents. 287.5 PC doesn't exist in the Penal Code but comes between 286.5 sexual assault on an animal and 288 PC a lewd and lascivious act with a minor under 14 years of age, the possibility of which had been worrying the mother.
Nowhere in California Penal Code 278.5 does the word "kidnapping" appear, or "child abduction" or "abduction." It is disturbing that these "mistakes" (if that is what they are) distort the charges, falsify the conduct and prejudice the person charged. It appears that District Attorney investigators presented this false and inaccurate information to the media and to other organizations.
She certainly did deprive "a custodian" of a "right to visitation," but her innocence, if she is innocent, would have to rest on whether the custodian she deprived of visitation was a "lawful" custodian. She will have to come up with some kind of evidence that the Divorce Court and the District Attorney and the police failed to recognize and act upon. In other words to get the Family Law/Divorce Court, the Criminal Court, the District Attorney and the police to examine their procedures and reopen the child abuse and child sex abuse investigations. These institutions all have great difficulty admitting error and, in this case, they would have to investigate themselves, something which seems inconceivable.
The positive side of this dismal situation is that the pretrial publication of such clearly false, inaccurate and prejudicial information about what she did, should make it easier to have the criminal case heard in another county before a less prejudiced, partial, and compromised prosecutor.
A Mother's Motivation
Her motivation for leaving her home, her friends, family-everything she ever worked for-and escaping from the control of Marin's Divorce Court, is assumed, from the charge, to be to deprive her ex-husband of his right to visit his daughter. Her assessment of her motivation was emotionally exhaustion, her fears that she could not protect her daughter. Nothing was working and the child was miserable.
The reader might think for a moment about what motivates mothers and fathers to demonstrate against the release from prison of some pathetic sex offender as one often sees on the local TV news. A mother with ear protectors is shown blasting away at a target with a large pistol, saying "If they won't protect my children, I will protect them" All the while Bam! Bam! Bam!. What would the reader do if there was some evidence, and you were not listened to, or you felt you were being ignored? Running away does not sound like the worst thing a frustrated, fearful person might do.
The District Attorney's Office formally made a determination on December 5, 2000, four months after mother and daughter disappeared, that the mother's fears of child sexual abuse were baseless and implied that she was lying: "Not only are these [the mother's] claims unsubstantiated, they appear to be quite suspect and [her] veracity is in question." This determination was presented-"buried" might be a better term-in a document requesting authority from the court to transport the missing child of the runaway mom to Marin if, and when, located.
A Biased Determination.
The Assistant District Attorney listed several documents which she said she reviewed, on which she based her determination, but did not list a single witness document from anyone which supported the mother's concerns. Nor did she list reviewing the photos of injuries, bruises, an injured "black" eye, photos of a rash, and medical records of persistent vaginal infections in a 3 year old child. The Assistant DA quotes selectively from one psychological evaluation paid for by the father, which was used in a failed attempt in 1999 to place sole custody with the father. Judge Dufficy, who heard the case at that time, rejected the evaluation and recommendation.
The mother is now being prosecuted by the same District Attorney's Office which sought and received approval for bail in the amount of $ 500,000.00 which kept her imprisoned for five months. There was no visitation with her daughter while in jail, nor was visitation ever considered. The District Attorney's Office requested and received a restraining order from Family Law Court, the same court the mother said " she had lost faith" when she fled. It takes four to six weeks to get on the Divorce Court calendar and as of July 28, 2004 there is no date set.
So, it appears that, at a minimum, the child will not see her mother or know what has happened to her for at least 9 months. No official is accountable for the child who was brought back to Marin six months ago. There is no Divorce Court plan. Most likely another lawyer will be appointed, one who will have to read the file to get "up to speed." A lawyer for the child might have been of some benefit when the Divorce Court judges and an Assistant DA decided the child's fate in private, on paper, without hearings.
The default position for resolving contentious issues seems to be psychological denial, if that doesn't work, continue the matter, appoint a lawyer, get a private evaluation and benign stagnation.
The "good" news is that the details of the District Attorney's "determination" will no doubt be subjected to discovery and examination as part of the mother's defense when her criminal case is tried before a jury. The bad news is that the court struggle will be long and bitter.
A Sham Court Hearing?
In the four hearings that took place in Divorce Court so far this year, there does not appear to have been any mention of the whereabouts and welfare of the child. Of these hearings, the most curious is the one of January 7, 2004, the day after the mother was arrested in South Carolina (January 6, 2004, 1:46 PM PST)
That "hearing" took place with appearances by the Assistant DA handling the criminal prosecution and the private attorney for the father. The Minute Order, a short memo like document which records the salient events in the proceeding, records the word "none" in the data field for "Nature of the Proceedings." The explanation for the hearing is "Ex parte minute order to facilitate the return of minor child to Marin County." A routine transportation order that declares the intention of the District Attorney's Office to place the child with the father-if -the child is located and-if-the child is placed with the father . The order, typed that morning, is signed by Judge Smith.
There is no mention that the child had already been located and the mother was already in custody. Here we have a Superior Court judge presiding in his court of justice in the presence of two sworn officers of the court and there is no notice of the mothers arrest! Why would they do that?
The hearing had to have been hastily arranged for it takes 4-6 weeks to get on the calendar. This hearing appears to have been a sham to cover for the fact that no judge previously committed a signature to the shoddy document. A document which now immediately transferred custody to a parent who hadn't seen the child in three and a half years and who was under investigation at the time of the disappearance of the mother and child.
In other words the document that justified the order which started off August 14, 2000 in front of Judge Taylor wasn't signed, and then went before judge Sutro who didn't sign it, and was then allegedly approved by judge Smith on March 18, 2003, but he too neglected to sign it. That order "to facilitate the return of the child to Marin" (and a few other things) was finally signed the day after the mother was jailed and the child placed in a foster home.
The mother's being in custody is ignored and never mentioned in the record .
It is interesting that at the next hearing on January 20, the attorney for the father informs the Commissioner filling in for the absent judge Smith, that she has been informed, "that the petitioner [the mother] has been taken into custody on kidnapping charges."
The explanation that suggests itself as to why an experienced attorney doesn't know the difference between a kidnapping and a violation of a custody decree in a case she has been intimately connected with for many years and why she didn't know, or care to inform judge Smith of the mother's arrest at the previous hearing is-quite possibly-that Family Law Court in Marin is pure theater.
How could the District Attorney allow such a document to be written? Inattention? No internal controls? Why would three judges review the document (which, presumably, they did review) and not sign it? Not one of them, but three! Why would the District Attorney's Office place such unconditional trust in a father involved in a long, drawn out, contentious divorce?
What was the benefit to the District Attorney? Outside pressure or influence? Was there any consideration of the risk? Why does the District Attorney avoid placing children in temporary foster homes staffed with trained, caring people in a home like setting? Other professional services could have been offered to assist the child and the father in reuniting if that were he plan while the mother resolved her legal problems. It takes away the risk and conforms with the law that requires impartiality to the parties in the custody dispute?
The court file contains a complaint, or a comment or sorts) made in 1999, that the District Attorney's Office might have a conflict in any involvement with this case due to personal friendship(s). This is another aspect of this case which may have to wait for the mother's trial for clarification.
Despite the fact that there has never been any evidence or intimation that the mother has ever acted towards her daughter with anything other than love and concern, her prospects of talking to, or seeing her child are bleak. It is more like she has committed an unpardonable sin against the judiciary-and she has to be punished.
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