Harsh Judgment

An epic child-custody case, pitting California against Texas, takes another twist when an appeals court labels the proceedings "nonsense"

On a sunny evening earlier this month, Debra Schmidt walked out of the Alameda County Jail at Santa Rita, her home since being extradited from Texas last fall. As she left, Schmidt remembers hearing a woman say, "You're free."

Schmidt was a bit apprehensive. Freedom, in her case, may be only a temporary reprieve while the judges and lawyers involved in prosecuting her finish fighting with one another.

Her release comes courtesy of the Third District California Court of Appeals and seems to have more to do with the actions of Schmidt's prosecutors than with any of her own crimes. Three weeks ago, the appeals court issued a scathing opinion that, among other things, accuses justice officials in Alameda and San Joaquin counties of conducting a "tag-team operation" designed to keep Schmidt incarcerated until she does what they want -- bring her children back to California. The higher court took a dim view of the situation, stating: "The deeper this court explores the record before us the more that record reveals a substantial abuse of the judicial process."

Schmidt is at the center of a convoluted, seven-year custody battle that stretches not only from San Joaquin to Alameda County, but across state lines into Texas (see "Law and Borders," Nov. 14, 2001). She believes that her two children are not safe with their father, a registered sex offender convicted in 1992 of misdemeanor child molestation in an incident involving his 13-year-old niece. San Joaquin County courts, where the couple's divorce and child-custody case originated, repeatedly ordered Schmidt to allow ex-husband Manuel Saavedra to visit his children. And Schmidt repeatedly refused, claiming that the prescribed visitation was not properly supervised. Saavedra, she says, threatened to take the children to his native Chile. So she struck first. In 1997, Schmidt packed up the kids and moved to Texas, apparently violating a court order that the children remain in California.

But leaving the state escalated the couple's legal battle.

The Alameda County District Attorney's Office (Saavedra now lives in Livermore) filed child abduction charges against Schmidt and requested her extradition from Texas. Then-Gov. George W. Bush and his successor, Gov. Rick Perry, both refused to extradite Schmidt, essentially questioning the California courts' decision regarding the children -- two girls, ages 7 and 9. Finally, a federal court ordered Perry to send Schmidt back to California. In December 2001, Schmidt was convicted in Alameda County of two felony counts of child concealment and sentenced to a jail term (minus time served) that technically should have ended in April.

It did not.

Before her arrest, Schmidt had begun a new custody action in Texas. More than two years ago, Texas Judge Jean Meurer assumed emergency jurisdiction over the matter, noting that the California courts had refused to cooperate with her attempts to resolve things. Meurer ruled that the children may not leave the Lone Star State, where they live with family friends.

Over the years, San Joaquin County officials alternately granted joint and sole custody of the children to Saavedra, then finally ruled that the children should be placed with Alameda County Child Protective Services. Nonetheless, Texas and California remain at odds over the issue of the children's home state. Saavedra has filed an appeal to the Texas case, but the appeals court there has yet to issue an opinion.

Schmidt has always maintained that she could not bring the children to California without violating the Texas court order. But the San Joaquin and Alameda courts disagreed and repeatedly held her in contempt of court for not bringing her children back. Finally, shortly before Schmidt's release, Alameda County prosecutor Robert Hutchins Jr. filed new child-concealment charges against her. According to the appeals court, the move was entirely for the purpose of keeping Debra Schmidt incarcerated.

In fact, the court's opinion leaves no question that the justices of California's Third District Court of Appeals have strong feelings on the matter: "However indignant these counties [Alameda and San Joaquin] may be over petitioner's past conduct in thumbing her nose at orders issued by their respective courts, a line has been crossed. ... It is our intent to resolve, firmly and finally, the issues at hand, and to put an end to this nonsense once and for all."

The appellate court noted that Meurer, the Texas judge, understandably took emergency jurisdiction of the children, given the often conflicting actions of the lower courts in California and their failure to address the best interests of the children.

On the subject of the repeated court orders that Schmidt bring the children from Texas while incarcerated, the appeals court stated: "In urging petitioner, under the threat of contempt and an indefinite jail commitment, to violate an order issued by a court in another state, respondent court acted both callously and irresponsibly."

Alameda prosecutor Hutchins says he did work on keeping Schmidt in jail, while Saavedra's attorney filed motions to do the same in San Joaquin County.

"I was horrified," Hutchins explains. "This woman hasn't obeyed any orders. She's a flight risk. I'll bet she's back in Texas right now."

(Reached in San Joaquin County, Schmidt declined comment.)

Hutchins seems quite passionate about the issue.

"There are just mistakes in the opinion that the court issued," he says. "I don't know where they got their information."

Hutchins believes that Saavedra should have custody of the children, though the decision is ultimately up to a judge in whichever state finally winds up with jurisdiction. Saavedra, he says, has been wronged.

"They keep throwing up this 'he's a registered sex offender thing' ... well, that's going to end come August [Saavedra is eligible for a certificate of rehabilitation 10 years after his conviction, which would mean he no longer has to register as a sex offender. The decision is up to a court]. He's led an honorable life from 1992 to present. I've met him many times. He's got a steady job. He's paid the price. He's done what was asked. He deserves his certificate of rehabilitation.

"[The children's placement] is up to the court, but I think he would be a very good father and he would be very caring to these kids, and I don't see anything that would put these kids at risk. He's living with a girlfriend who has a daughter who is 10 years old living in the house, and he's been seeing [the girlfriend] for about five or six years. There's nothing to indicate that he would ever do this again."

Hutchins also remains undeterred in his pursuit. Debra Schmidt is due back in Alameda County Court for a hearing on the new charges of child concealment. Though she's already been convicted of, and served time for, the same crime, Hutchins argues that child concealment is a continuous crime, and, therefore, he will continue to prosecute Schmidt for it, until she delivers her daughters.

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