Law and Borders

130129.0

Alameda County's Santa Rita Jail is among the largest county jails in the United States; it holds thousands of women, including, since her extradition in September, Debra Schmidt, mother, grandmother, minor media star, accused kidnapper, former fugitive, and subject of a war between Texas and California.

Off corridors that seem to go on forever is a series of rooms where inmates see and speak with visitors, by telephone, from behind a glass partition. A guard escorts Schmidt into one of the rooms and locks her in. A slight woman clad in thongs and a mustard-yellow inmate jumpsuit — a color indicating that she's housed in medium-to-maximum-level security — Schmidt hardly looks threatening. Her face is framed by short layers of blond hair that look surprisingly stylish given her present living situation, and she appears a bit younger than her 43 years, except for the lines on her face that make her look permanently tired. Without even saying hello, she motions to wipe off the telephone receiver before picking it up. The implication is clear: “Don't put that thing up to your mouth, you don't know who's been using it.”

Schmidt has notes on a yellow legal pad; dates and court actions and major points that she wants to remember to make. It's clear that Schmidt has gotten used to talking to the press. That aside, Debra Schmidt seems an entirely ordinary woman who has, by her own admission, made a lot of bad judgment calls, most of them involving men, the legal system, or both men and the legal system.

During the last several years, Schmidt has become entangled with a host of public and private characters — including prosecutors, judges, and even a couple of governors (one of whom went on to become president) — in an epic child custody war over the meaning of the most basic aspects of family, law, and family law. At the heart of the matter is Schmidt's belief that her two youngest daughters are not safe with their father, a convicted sex offender to whom the California courts have, sometimes in apparent violation of the law, granted a variety of supervised and unsupervised visitation and custody arrangements. Her concerns seem eminently reasonable; public records show the father has exhibited a variety of anti-social behaviors, including child molestation and alleged spousal abuse.

Through a series of strategically ridiculous moves, however, Schmidt has managed to turn the legal tables upon herself, and to at least temporarily invalidate the agreements that are the foundation of interstate law and order. After fleeing to Texas with her children, Schmidt was able to gain the backing of authorities there — but in doing so, she sparked the ire of California family courts and a prosecutor who has filed child abduction charges against her.

The cross-jurisdiction custody battle became so heated that one-time Texas Gov. George W. Bush and his successor, Rick Perry, refused to extradite Schmidt to stand trial in California — a transfer that is ordinarily a matter of routine legal courtesy. Eventually, a federal judge forced Texas to hand Schmidt over, and now a mother who claims her only interest is to protect her children from a sex offender waits to stand trial in Alameda County next week on a felony child abduction charge.

The fate of her children remains unclear.

A Texas court has ordered that the children not leave the Lone Star State, where they currently live. A California court is demanding the children return to the state of California. Neither state seems willing to budge, and no one seems to know the way out of a legal stalemate that better serves the needs of large legal egos than the interests of two girls, aged 7 and 9.

Even in jail and half a country away from her children, Schmidt says that she would do it all over again. “The California courts put me in the position of having to protect my children,” she says, utterly sure in her naive belief that because she is in the moral right, the legal system will eventually be on her side, too.


Debra Schmidt was married to her first husband, Lee Schmidt, for seven years. They lived in Santa Clara County and had three children who are now grown. In 1988, she had another child with a man named Mitchell McKenzie, who would later oddly become her biggest supporter in the battle for custody of her children. Schmidt and McKenzie married, but divorced after less than a year. “Mitch and I have been best friends for years,” she says. “But we should have never gotten married.”

By 1989, Schmidt had moved to California's Central Valley; she met Manuel Saavedra in a nightclub in Tracy. Schmidt remembers that he was handsome and his Chilean accent made him seem suave. He also appeared to be very kind. “He's charming, he's attractive, he's fooled everyone,” she says.

The two dated briefly and married in March 1991, in the back yard of Saavedra's home in Livermore, where they lived. There was trouble almost from the start; during the next five years, the couple would break up and reunite repeatedly. Most of this activity is memorialized in custody orders, restraining orders, and even two criminal cases in San Joaquin County. Amid the turmoil, Schmidt and Saavedra had two daughters, Lora and Eliana, who would eventually become the focus of labyrinthine legal battles.

In 1995, the couple broke up for good. Schmidt and her three youngest daughters moved to Manteca, and the court battle over the custody of Lora and Eliana heated up. The battle has never really stopped, at least in part because although there are few things Debra Schmidt is afraid of, Manuel Saavedra is among them.


Debra Schmidt and Manuel Saavedra have beaten a not particularly pretty path through the Family Law Department of the San Joaquin County Court. A review of court filings shows that the decade-long custody fight between them was building to a crescendo well before the battle over Lora and Eliana was fully engaged. [page]

In August 1992, Saavedra was charged with molesting Schmidt's 12-year-old niece, who was visiting from Oregon. The incident occurred during a summer block party in the small Central Valley town of Ripon, where the family lived at the time. Witness accounts and court records describe what happened this way:

After the party was over, Schmidt's children from her previous marriages and the niece fell asleep in the living room of Schmidt and Saavedra's house. Meanwhile, Schmidt, Saavedra, and their adult neighbors sat out on the front lawn, finishing the beer left in a keg after the party. Saavedra announced that he was going inside the house to get cigarettes. Some time later, Schmidt went into the house and found him hunched over her niece on the sofa. Her children reported having heard Saavedra making lewd remarks to the niece, who said he fondled her.

The house erupted in chaos, and a neighbor escorted Saavedra out; Schmidt called the police. Saavedra contends that he was very drunk and doesn't remember what happened. He was charged with a felony for molesting the niece and pleaded guilty to a misdemeanor offense that, nonetheless, requires Saavedra to register as a sex offender.

Immediately after the incident, Schmidt asked Saavedra to move out of their home and obtained the first in a series of restraining orders preventing Saavedra from coming near her, her children, or their house. Saavedra attended court-mandated counseling, and, eventually, the couple also entered family counseling. They reunited; Schmidt signed a statement through the counseling program that she would not leave children unsupervised with her husband.

“I'd had two failed marriages,” Schmidt explains. “My family and I believed he made a mistake. I didn't feel like he was dangerous, but I didn't trust him. I didn't want another divorce. I had to know that I'd done everything to make this marriage work.”

Through his attorney, Saavedra refused to be interviewed for this story.

The couple split up and got back together several times during the next two years. In August 1993, Schmidt filed for legal separation and was awarded custody of their 18-month-old daughter. The court allowed Saavedra to have supervised visitation. (The law specifies that registered sex offenders may not have custody of children, unless a court has specifically deemed an offender to pose no risk of additional sexual misconduct.) During yet another reunification with Saavedra, Schmidt became pregnant again, and another daughter was born in March 1994.

A year later, the couple split for good, and a court ordered the same custody arrangement for both children — that is, Saavedra had visitation rights, but only in supervised settings.

Over the next two years, Schmidt repeatedly told the family court that Saavedra had threatened to take their children either to his native Chile or to Norway, where his family lives. Schmidt even went so far as to register her children with the U.S. State Department, essentially preventing a passport from being issued for them without her consent.

Visits between Manuel Saavedra and his children continued until Feb. 10, 1997, when, Schmidt alleges, he raped her in front of their oldest daughter, then 5 years old.


In court testimony, Schmidt described the events that led her to cut off Saavedra's access to their daughters in this way:

Schmidt was hosting a barbecue at her home; Saavedra came over around 1 p.m., looking for some tax-related papers that Schmidt couldn't find. Lora and Eliana, the couple's two little girls, asked Saavedra to take them to McDonald's, and Schmidt acquiesced. Schmidt called Saavedra's home a few hours later, and Saavedra told her he'd return them after dinner.

During the course of the afternoon, Schmidt testified, she drank four or five beers, was feeling intoxicated, and went upstairs to lie down before the children returned home.

Sometime around 9:30 that evening, she awoke to find Saavedra on top of her trying to pull her pants down — with Lora standing in the bedroom doorway. Schmidt screamed at Saavedra to get off of her, and yelled at her daughter to leave the room. Saavedra held her hands above her head and pressed his knee inside her thigh and his thumb in the hollow of her neck, but a female friend who'd attended the barbecue came into the room; a tussle ensued, and Saavedra left. Schmidt called the police, who arrested Saavedra on suspicion of attempted rape.

In a March 1997 preliminary hearing, a judge in San Joaquin County found there was probable cause to believe that the assault had occurred, but the District Attorney's Office didn't pursue the case. Schmidt says the charges were dropped because she would not allow her daughter, who witnessed the event, to testify in court. (A counselor's report notes that Schmidt's daughter was likely telling the truth about having witnessed the incident.)

Saavedra has repeatedly denied that the assault took place and later told the family court that the case was dropped because Schmidt had made the whole thing up. (There is no legal record of why the case was dropped.)

Without discussing specific details, San Joaquin Deputy District Attorney Mary Aguirre, who handled the case, explains the situation this way: “Sometimes we don't file charges even after a judge said there was cause because we don't think we can get a conviction from a jury. Spousal rapes are, in and of themselves, difficult to prove. If there are custody issues going on at the same time, everything gets even more difficult.

“But just because we don't file doesn't mean something didn't happen.”

In any event, the incident marked the last time Schmidt allowed Saavedra to visit their children. Between March and August 1997, the couple bounced back and forth between courts and court-ordered mediation, arguing about the custody and visitation of their children. Repeatedly, the court ordered Schmidt to allow her ex-husband to visit their children, and, repeatedly, Schmidt defied the order. At one point, the children were to meet with their father at the Walter Britten Center in Stockton, a county-operated center designed expressly for such court-ordered visits. Schmidt refused to bring her children to the center, saying that it was not supervised well enough, particularly because it included an outdoor playground that was not supervised at all. [page]

In fact, according to Vicky Price, a counselor at the center, Walter Britten was not set up to handle visitation by sex offenders — federal guidelines require that they be seen and heard by a supervisor at all times — until at least 1999, two years after the court ordered Schmidt to take her children there.

“Manuel called me the day before the second visit was supposed to happen and said, “Say goodbye to your girls,'” Schmidt says. “It scared me. I believed him [when he said he would abscond with the children], and I still do.”

When Schmidt didn't show up with his kids, Saavedra filed complaints with the court. And court officers became increasingly frustrated with Debra Schmidt's repeated refusal to follow court orders.

By this time, Commissioner Robin Appel, who acts as judge in family court matters in San Joaquin County, had made clear that if Schmidt did not begin complying with the court's orders, she would lose custody of her children. A hearing was scheduled for early September; it never happened.

On Aug. 30, 1997, after Schmidt didn't show up to meet with a court-appointed mediator, Manuel Saavedra asked Manteca police to check on his children. The police found an empty apartment.


In 1996, Debra Schmidt and ex-husband Mitchell McKenzie were getting along so poorly that she sought a protective order to keep him from attempting to take their daughter to Texas, where he lives. (The matter was dropped before it got to court.)

A year later, Schmidt packed up her children, drove away from their Manteca home, and headed to a suburb of Austin, Texas — a suburb where Mitchell McKenzie and his family live. The McKenzies, she says, let her live in a home they owned and helped her start a new life in Texas. It was a short-lived life.

After Saavedra learned that his ex-wife had fled, he contacted the Livermore Police Department. Ultimately, he made contact with Robert Hutchins, an Alameda deputy district attorney who serves in that office's Child Abduction Unit. Hutchins is a quick and confident figure around the Alameda Court who is fond of telling the media that he's prosecuted more than 2,800 child abduction cases. He was not about to lose this one.

To that end, Hutchins obtained a warrant for Schmidt's arrest.

In October 1997, two months after Schmidt had fled the state, San Joaquin County Superior Court Judge Frank Grande gave Manuel Saavedra sole physical and legal custody of his two young daughters. (Schmidt failed to show up with her two daughters at the hearing, defying yet another court order.) Hutchins, who asked Saavedra's attorneys to request custody, says the move was simply a matter of logistics, enabling Saavedra to pick up the children if they were located. The court noted that a hearing on whether the children should be made wards of the state should take place as soon as they returned to San Joaquin County. The order was based on a set of facts, one of them apparently nonfactual; the order contended that Schmidt had “falsely claimed that [Saavedra] raped her.”

Though it was not the first time a California court has given sole physical custody of female minors to a registered sex offender, legal experts say such a move is rare, and generally reserved for situations in which the other parent is incarcerated or has committed a worse crime. There is some evidence that might support a decision to give Saavedra access to the children. He attended court-mandated counseling following his 1992 conviction, as part of his probation sentence, and again, at the request of the court, in July 1997. He was discharged from the program in October 1997. In 1999, having fulfilled his probation, Saavedra successfully petitioned the court to dismiss his conviction, a fairly routine administrative matter that cleanses his record of conviction, but does not change the requirement that he register as a sex offender. “I view him as being minimal risk of reoffending, as long as he maintains sobriety,” Victor Eckles, program representative at the Sex Offenders' Counseling Services in Stockton, stated in a letter to the court.

Still, Schmidt's lawyers argue that the custody order was illegal, because the court never made any official finding that Saavedra was not a risk to the children, as required by state law. The California court's custody order has since been changed, so that, upon return to California, the children will be placed in the care of the Alameda County Child Protective Services.


In December 1999, Debra Schmidt entered a Department of Motor Vehicles office in Austin, Texas, to get a new driver's license. A clerk took her picture and her money, and then asked her to step aside. The next thing she knew, Schmidt says, she was in the Austin City Jail, where she spent the next five or so days while various law enforcement agencies sorted out what to do with her. Finally, a couple of days before Christmas, friends posted bond, and Schmidt came home.

Two months later, Schmidt was back in jail after she steadfastly refused to disclose the whereabouts of her children to a Texas judge. Schmidt spent 28 days in the county jail while her children remained hidden from authorities. District Judge W. Jeanne Meurer asked Schmidt again and again to produce her children; Schmidt refused.

Finally, Schmidt and Meurer struck a deal. Schmidt's children were placed in temporary foster care with Schmidt's pastor, and Meurer let her out of jail. [page]

And then the Texas judge did something that hadn't been done in the seven years of custody battle in California: She appointed an attorney to represent the children's interests and requested an investigation to determine the fitness of each parent to provide a home for Lora and Eliana Saavedra.

Both the Alameda County Social Services Department and its Texas counterpart recommended that Lora and Eliana remain in Texas, and not be placed with their father.

In California, though, the finding hasn't seemed to matter.

Hutchins, the Alameda County prosecutor, asked Gov. Gray Davis to formally request Schmidt's extradition from Texas, which he did. In September 2000, then-Texas Gov. George W. Bush's lawyers sent a letter to the California Attorney General's Office, questioning both the extradition request and the California court's decisions regarding Schmidt and Saavedra's children. In part, the letter states:

“In an effort to avoid [a federal court action], Governor Bush has asked to seek clarification and assurance from you regarding what California's state and local authorities will do to insure the safety and well-being of the Saavedra children if Ms. Schmidt is extradited back to California to stand trial.”

Of course, Bush went on to become president. His successor, Texas Gov. Rick Perry, made a political show of refusing to extradite Schmidt. Finally, Hutchins successfully sued Perry in federal court, forcing him to send Schmidt to Alameda to face trial on the child abduction charge.

By then, Schmidt's case was big news in Austin. Her court hearings were covered in the newspaper, lawyers debated the issues on television, and she even held a press conference as she left jail.

Hutchins has become so exasperated by Debra Schmidt's legal maneuvers that he grows visibly agitated just talking about it. The prosecutor clearly has no patience for a judge in Texas sticking her nose into what Hutchins believes is his case, or for two governors stalling his requests for extradition. He wants to put Debra Schmidt behind bars. Period.

And while he attempts to do so, the lines between the Alameda criminal court abduction case against Schmidt and the civil court custody case in San Joaquin County are blurring.


Texas District Judge W. Jeanne Meurer is well-known in Austin for her service on the juvenile justice bench. So well known, in fact, that the 47-year-old judge has a juvenile detention center named after her. A Democrat, Meurer was elected in 1988 and has been re-elected ever since.

In an October 2000 hearing in Texas, which Schmidt and Saavedra both attended, Meurer took emergency jurisdiction of the custody case involving their children and made Schmidt and the Texas Department of Protective and Regulatory Services joint, temporary managing conservators of the children. By her ruling, Saavedra would have supervised visits with his children at a center designed for such things in Austin.

At the same time, Meurer blasted the California court system for mishandling the case.

“I think the court has made rulings without information that I find appalling,” she said, referring to the order granting Saavedra custody. “It is inappropriate for a court to make such decisions, which again reaffirms this court's concern, that in fact California is failing to look at this case objectively. … If California is simply going to look to punish a parent without making adequate provision for transition … I will continue to exercise emergency jurisdiction, because I believe California has failed to adequately hear this matter, and to adequately address it in its entirety.”

She also admonished Debra Schmidt: “[I]f you continue to defy any court order, if you just so much as decide maybe you're just going to do a little bit against me, you will never have possession of these children again.” And Meurer ordered that Schmidt be prevented from removing the children from Travis County without the approval of Texas' Child Protective Services.

Needless to say, officials in California were livid. But the Texas court wasn't backing down.

In a later ruling that relied on a controversial legal judgment, Meurer used a provision of the Hague Convention, an international compact that deals, in part, with child custody, to take full (rather than temporary/emergency) jurisdiction of the case. Ordinarily, the state where a custody case begins maintains jurisdiction for the life of the case, under the dictates of the Uniform Child Custody Jurisdiction and Enforcement Act, which governs questions of custody between states.

But Meurer seized jurisdiction, gave custody of the children to Schmidt (and supervised visitation to Saavedra), and ruled that “the children shall not be removed from the jurisdiction of this court for any reason until further orders of the court.” Saavedra's lawyer has begun the process to appeal that ruling in Texas, arguing that Meurer did not have jurisdiction to hear the case because the children were in Texas illegally.

Without explanation, Meurer recused herself from the case last month, saying only that she had received information outside the courtroom regarding the case.


Two things are very evident in the workings of the various legal cases surrounding Debra Schmidt: There is no longer any such thing as a routine procedure, and almost everyone involved is extraordinarily angry.

Even something as seemingly ordinary as a bail hearing in the Hayward branch of the Alameda Criminal Courts last month seemed oddly heated. The matter at hand was Schmidt's request for reduction of her $100,000 bail. Her attorney, Rollie Pennington, a veteran of Central Valley courts, argued without irony that Schmidt was not a flight risk. In response, Hutchins asked that bail be increased to $200,000.

Judge Joseph Hurley probed the issue of Schmidt's children, particularly why they were still in Texas. In short order, tempers flared. Despite her lawyer's admonishments to the contrary, Schmidt argued with the judge over the facts of the case, while Hutchins and Pennington sparred over rulings of the Texas court. As the dust settled, Hurley issued an order revoking bail altogether until Schmidt, who is still incarcerated, brings her children back to California, in which case bail would be set at $50,000. Of course, the move would violate the Texas court order that the children not leave that state — a judicial order that, Hutchins argued, Schmidt could have changed. [page]

So, in essence, a California judge ordered Schmidt to ask a Texas judge to allow her to bring her children to California to be placed in the care of Alameda County Child Protective Services — the same department that has officially determined that the children are better off in Texas.

Schmidt refused. “Under no circumstances will I bring my children to California,” she says from jail. “We've never received any protection or justice in California.”

 

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