Marriage of Deuel

Filed 8/15/07 Marriage of Deuel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Sharon Mettler, Judge.

Cynthia Ann Wade, in pro. per, for Appellant.

Ethel Bartlett, in pro. per., as Amicus Curiae on behalf of Appellant.

Anna Lee Deuel, in pro. per., for Respondent.

No appearance for Respondent Brian Wade Deuel.

-ooOoo-

INTRODUCTION

Respondent Anna Lee Deuel (Anna) filed a petition for dissolution of her marriage to Brian Wade Deuel (Brian), and sought legal and physical custody of their child (the child).^[1] Brian was in state prison, and his mother, appellant Cynthia Wade (Cynthia), filed a motion for joinder and for visitation with her paternal grandchild. The court granted the motion for joinder and provided for Cynthia to have visitation. Brian was released from prison and sought to regain his custodial and visitation rights, with Cynthia to provide supervision, but Brian appeared at a court hearing while apparently under the influence of a controlled substance, failed to comply with the courts order to submit a drug test, and then disappeared.

The court granted custody to Anna, with specific visitation to Cynthia, but ordered Cynthia and Anna to attend counseling, for Cynthia to pay counseling and babysitting expenses, and not to make disparaging remarks about Anna in the childs presence.

Cynthia has filed an appeal, and argues the court should have granted expanded visitation time, and abused its discretion in ordering her to attend counseling, pay counseling and babysitting expenses, and not to make disparaging remarks about Anna in the childs presence.

Family Code^[2]section 3103 is the exclusive means by which a grandparent may seek visitation with a grandchild in the course of a dissolution action. We will review the factual and procedural history of this case, and whether the court had the statutory authority to issue the visitation orders in this case.

Annas Petition for Dissolution

On March 6, 1999, Anna and Brian were married. On or about December 21, 2003, they separated.

On May 4, 2004, Anna filed a petition for dissolution of marriage in the Superior Court of Kern County. The petition declared that Anna and Brian were the parents of an unborn child, due in August 2004. Anna requested sole legal and physical custody of the child, with Brian to have supervised visitation. Anna filed the petition in propria persona, and represented herself throughout this action.

On August 19, 2004, Brians and Annas child was born.^[3] The child has resided with Anna throughout the entirety of this case.

At some point in the proceedings, Brian was placed in custody in state prison.

On November 18, 2005, Brian filed a response and request for dissolution of marriage. Brian requested joint legal and physical custody of the child, with the court to determine visitation. Brian was represented by attorney Larry Wilson, who represented him throughout this action.

Cynthias Motion for Joinder

On December 1, 2005, appellant Cynthia Wade, Brians mother and the childs paternal grandmother, filed a motion and motion for joinder in the dissolution action, for the purposes of custody and visitation. Cynthia declared that Brian was unable to visit the child because he was in prison, and he asked Cynthia to maintain a family relationship with the child. Cynthia declared that shortly after the childs birth, Anna allowed her to visit the child but subsequently terminated the visits. Cynthia declared Brian supported her motion for joinder, and Cynthia requested visitation with the child on alternate weekends. Cynthia was represented by Mr. Wilson, who continued to represent Brian.

On December 5, 2005, Judge Hoover conducted a hearing on Cynthias motion for joinder. There is no reporters transcript for this hearing. According to the minute order, Anna appeared and represented herself, Cynthia appeared with Mr. Wilson, and Brian was not present. Anna and Cynthia testified. The minute order states the court granted Cynthias motion for joinder on the limited basis of visitation.

On December 15, 2005, Cynthia filed the complaint for joinder and visitation with the child.

On December 16, 2005, the court issued a ruling on Cynthias request for visitation. The courts minute order states that Cynthia was to make her own hours on visitation, and ordered Mr. Wilson to prepare the appropriate order. On the same day, however, the court filed the order after hearing, apparently prepared by Mr. Wilson, which stated that Cynthia was joined into the matter for the purpose of visitation, Cynthias visitation rights were derivative through any visitation granted to Brian, and Cynthias visitation order would be null and void if any orders were issued as to Brians visitation. The court granted Cynthia visitation with the child on Monday, Wednesday, and Friday afternoons, alternate weekends, four hours on Christmas Eve, and four hours on Christmas Day. Cynthia was ordered to provide all transportation.

Brians Release from Prison

On December 23, 2005, Anna filed an order to show cause for modification, and requested the court to void the order which joined Cynthia into the case. Anna declared Brian had been released from Wasco State Prison on December 5, 2005, the same day that Cynthias joinder motion was heard, his release on that date had been previously scheduled, and that Cynthia and Mr. Wilson should have been aware of his scheduled release on the day of the hearing and advised the court about Brians status. Anna requested a hearing to void Cynthias joinder into the case and set supervised visitation for Brian.

At some during the pendency of this action, Anna filed a separate complaint against Cynthia for civil harassment, and sought a temporary restraining order to keep Cynthia away from her. There is no evidence that Anna sought or received a restraining order between Cynthia and the child.

On January 6, 2006, Brian filed an order to show cause (OSC) for temporary custody of his child. Brian declared that he asked Cynthia to join the matter to maintain their family relationship with the child, and the court provided for visitation to begin on December 17, 2005. Brian declared that Anna had either gone into hiding or fled the area with their child because Anna had failed to appear for Cynthias visitations on December 17, 18, and 19, 2005. On those dates, Cynthia and a police officer went to Annas apartment, no one answered, and Annas neighbors said they had not seen her for a couple of days. Cynthia affixed the courts visitation orders on Annas door. Cynthia received information that Anna might be in Eureka.

Brian further declared that he was employed as a cable television installer, he was now available to assume his own custody and visitation rights, Anna was trying to undermine his relationship with his child, and he requested temporary custody of the child so he could request assistance from Kern Countys child abduction unit to locate the child.

The record infers the court granted Brian temporary custody of the child, but the order only remained in effect until January 12, 2006. During that time, however, the child remained in Annas physical custody. The record also infers that the custody matter was set for mediation but Brian failed to appear.

On January 12, 2006, Judge Alderete conducted a hearing on Brians OSC for modification. There is no reporters transcript for this hearing. According to the minute order, Brian and Cynthia were present with Mr. Wilson; Anna was present and represented herself. The court continued the custody and visitation case to January 23, 2006, and ordered Annas civil harassment case against Cynthia to be heard on that date.

On January 20, 2006, Annas separate case for civil harassment was dismissed without prejudice.

The January 23, 2006 Hearing

On January 23, 2006, Judge Mettler conducted the continued hearing on Brians OSC for modification. Anna, Brian, and Cynthia were present; Mr. Wilson represented Brian and Cynthia. There is a reporters transcript for this hearing. Judge Mettler informed the parties that Judge Hoover was not available to hear the case because he is scheduled for surgery later this week and so thats why you are getting a brand new judge. And he has been moved out of family law.

The court noted that Annas case for civil harassment had been dismissed without prejudice because no one appeared for the hearing. Anna stated she did not appear because Mr. Wilson advised her the civil harassment case had been continued to this date. Mr. Wilson agreed the civil harassment case was erroneously dismissed. The court set aside the dismissal and agreed to hear argument on the civil harassment case.

The court reviewed the prior orders in the case and acknowledged that Cynthias motion for joinder was granted for the limited purpose of visitation. The court also reviewed the pending motions for custody and visitation. The court observed that Cynthias visitation rights were derivative through Brian, Brian had been released from prison, and the joinder order should be moot. The court asked whether Cynthia still had a position in this case. Mr. Wilson acknowledged Brian was released from prison and Cynthias visitation rights were derivative through him, and admitted Cynthia was not trying to receive an independent visitation schedule. However, he asked the court to continue Cynthias joinder in the case because her participation was essential in regards to any kind of visitation. Mr. Wilson stated Brian filed the OSC for temporary custody because Anna fled the area. Brian did not want primary custody, but requested a visitation order to replace Cynthias visitation schedule.

The court interrupted Mr. Wilsons argument and advised the parties that a deputy sheriff, who was present in the courtroom, informed the court that Brian appeared to be under the influence of a controlled substance. Mr. Wilson replied he also noticed Brians condition and asked him about it, and Brian said he spent all night working on a friends computer system. Mr. Wilson asked to adjourn the hearing so Brian could take a drug test and verify that he was not under the influence. The court called a recess so the deputy could speak to Brian and evaluate his condition.

After the recess, the court stated the deputy believed Brian was under the influence of a controlled substance. Mr. Wilson suggested a continuance so Brian could immediately submit a drug test. Mr. Wilson also suggested the parties comply with the current visitation order, so that Brian could visit the child while she was with Cynthia. Anna objected to the continuance because she could not take off anymore time from her new job as a waitress. Anna also objected to Brian receiving any visitation because drugs had been a serious problem for him, and his mother [Cynthia] has covered up for him in the past, and I would be uncomfortable with Cynthia supervising his visitation.

The court asked Mr. Wilson whether he would waive Brians continued presence at the hearing, given the deputys determination that Brian was probably under the influence. Mr. Wilson agreed and waived Brians presence, although Brian physically remained in the courtroom.

The court was willing to continue with the hearing to determine Brians status and whether Cynthia should supervise Brians visits with the child. Anna again objected because Cynthia has covered up his prior drug use and has had his coming to my house while she knew he was under the influence.

The court decided to proceed with the hearing to consider Brians request for Cynthia to supervise his visits with the child, so at this point the burden is on him for showing that she would be a good supervisor, so he would call witnesses. If Brians drug test was positive, it would consider ordering Cynthia to supervise the visits unless Anna could think of someone else to act as supervisor. Anna again objected to leaving her child with Cynthia.

Thereafter, Mr. Wilson called Cynthia, who was sworn as a witness, to testify as to whether she should supervise Brians visits with the child. Cynthia testified she worked for Bethany Ministries and Bethany Christian Mens home, a residential treatment program. Cynthias mother was the pastor, and Cynthia had been involved with prison ministry for many years. The majority of their clients were trying to deal with their drug addictions, and Cynthia regularly ordered clients to submit drug tests when they displayed certain symptoms.

Cynthia testified she had received 10 of 22 scheduled visits with the child, pursuant to the courts visitation order. The childs maternal grandmother (Annas mother) provided transportation for the child, and there were no problems with the exchanges. The other visits did not occur either because Anna was not home or she refused to allow the visits.

Cynthia testified that as a condition of his parole, Brian was ordered not to have any contact with Anna. Cynthia testified the stay-away order was the result of an incident where Anna had a butcher knife and she was chasing him and saying she was going to stab him. Cynthia testified that Anna had a history of assaulting Brian, based on what Ive witnessed on his body and also the story such as I was told.

Cynthia testified the child had bonded with Brian and herself. Brian was temporarily living with Cynthia. Cynthia was willing to supervise Brians visits with the child, and asked the court to adjust the visitation schedule to fit the work schedules for Brian and her.

Cynthia admitted that she had noticed Brians condition earlier that day, and she was concerned he might be under the influence of a controlled substance. She asked Brian if he was okay, and Brian said he was tired because he stayed up all night working on a friends computer. Cynthia admitted that if Brian showed up at the churchs treatment program in his present condition, she might have asked him for a drug test. Cynthia testified that Brian previously participated in the churchs treatment program, he appeared to be under the influence on one occasion, she ordered him to submit a drug test, it was positive, she ordered him out of the program, and he was gone the same day. Cynthia testified she could exercise the same type of control over Brian if she was asked to supervise his visits with the child. Cynthia was also willing to ask Brian to move out if so ordered by the court, and she would not let him around the child if he was under the influence.

Thereafter, Anna was sworn as a witness and testified she tried to follow the courts visitation orders. Anna had an older son from a previous relationship; Brian was not his father. Anna testified she was not at home when Cynthia showed up for some of the visitations because she took her son to visit his father, and she had not received the court orders for the visitation dates. When she returned, she discovered the court orders were taped on her door. Anna called Cynthia and told her to pick up the child for her visit. Anna testified she cancelled some of the other visits because she believed the court order provided for the visits to be at her discretion.^[4]

Anna testified she was aware of the incident in January 2005, where Brian tested positive for drugs while attending the churchs treatment program, but disputed Cynthias account of the incident. Anna testified Cynthia knew Brian had tested positive but Cynthia failed to tell Anna about the positive drug test until Brians parole officer learned about it and informed Anna. Anna complained that Cynthia knew about the positive test but allowed Brian to visit Anna and the child in that condition. Anna also clarified Brian did not leave the churchs treatment program until three weeks after failing the drug test, because he was wanted by parole and could not stay there anymore.

Q. And you are saying its three weeks later that he is still living there?

[ANNA] Yes, and [Cynthia] also told me not to tell Brian because she didnt want me to come between her and her son.

Q. Dont tell Brian that I tested him dirty?

A. Yes.

Q. So you are saying she did not kick him out of the ministry?

A. Yes, I am.

Anna testified Brian left the program and was missing for about two weeks, and then he returned to Annas home and promised he would enter another treatment program. Anna let him stay with her until she found a needle in his bag, and immediately kicked him out.

Anna testified she did not want to stop Cynthias visits with the child. Based upon these prior incidents, however, she was concerned that Brian would continue to use drugs and Cynthia would let him visit with the child when he was under the influence. Anna explained she was against drugs, she had seen Brian under the influence on numerous occasions, and drugs were one of the major problems in our marriage. She knew Brian continued to use drugs and preferred methamphetamine, and he also used heroin. Brian always lied to her about his drug use because it was something that I was very against.

Anna testified she previously had a drug problem and lost custody of her son. She went through treatment programs, she had been clean and sober since approximately March 12, 2002, and she regained custody of her son. She still had a sponsor and occasionally attended support meanings.

Cynthia was recalled as a witness, still under oath, and asked about the incident where Brian tested positive while at her churchs treatment program. Cynthia insisted that Brian left the program within a few hours of learning about the positive drug test. Brians parole agent spoke to Cynthia and informed her that Brian also failed a parole drug test. As a result, Brian took off for two weeks because he thought he had violated parole, but the parole agent was willing to work with him because it was his first failed test.

At the conclusion of the testimony, the court ordered Brian to submit a drug test that day. If the test was negative, he would receive visitation with the child, with Cynthia providing supervision. If the test was positive, Brian would not have any visitation until he submitted two consecutive clean tests, at least five days apart. If Cynthia failed to follow the courts order, then the court would not consider her as a suitable supervisor. Cynthia requested modification of the visitation schedule to fit around her work hours. Anna objected because of her own work schedule. The court declined to modify the time frames and continued the matter.

The February 6, 2006 Hearing

On February 6, 2006, Judge Mettler conducted the continued hearing on the custody and visitation issues. Anna and Cynthia were present; Brian was not present. Mr. Wilson appeared on behalf of Cynthia and Brian.

Mr. Wilson advised the court that Brian refused to take the drug test, as previously ordered by the court, and his whereabouts had been unknown for three weeks. Brians parole officer was looking for him for a potential violation, and Brian had been fired from his job. Mr. Wilson further stated Cynthia had received visits with the child, and she provided transportation. Mr. Wilson stated that since Brian was physically and emotionally unavailable for any meaningful visitation with the child, Cynthia requested modification of the visitation schedule so it would not conflict with her work hours. Cynthia also wanted overnight visitations.

Anna, who represented herself at the hearing, stated she did not object to Cynthias visits with the child, but objected to Cynthias schedule requests. Anna explained the child was 17 months old, and Anna did not allow her own mother to have overnight visits with the child yet. Anna complained she was the sole provider and single mother of two children, and the court needed to consider her own work schedule. Anna stated the current arrangement was disruptive to her own life because she lost her last job because of the visitation schedule. Anna argued Cynthias demands for visits disrupted her own time with her daughter, and her eight-year-old son was upset with Cynthia because he was very close to the child and he did not have any time with her. Anna was currently employed as a waitress at IHOP, she worked eight hours a day, seven days a week, and only occasionally received days off. Anna also stated that her previous babysitter said Cynthia was crazy and refused to handle the transfers of the child to Cynthia. Anna stated her own mother was not able to provide babysitting anymore, and Anna had to find another provider.

The court asked Anna about the related case for civil harassment she filed against Cynthia. Anna, again representing herself, stated she moved for the restraining order because Cynthia left an evil letter on her car, Cynthia made several telephone calls to her and threatened to go to court if Anna refused visitations with the child, and Cynthia parked across the street from her home and watched her. Anna stated that when the child was born, she did not allow Cynthia or Annas mother to take care of the child until she was three months old. At that point, Anna allowed Cynthia to have regular visits until the child was seven months old, but Cynthia demanded more time with the child and claimed she had rights as a grandparent. Cynthia kept threatening Anna, Cynthia acted like she was the childs mother, and Anna stopped talking to her. Anna was upset because Cynthia was demanding more and more time with the child, whereas neither Cynthia nor Brian was providing financial support for the child.

Anna stated that when Brian was released from prison, she asked him several times for financial assistance for the child, and Brian replied that he would take the child from her and not give her a penny. Anna asked Cynthia for help, and Cynthia said she would only help Anna if she had the child for the weekend. Anna stated that her own mother did not have a lot of money, and her maternal grandfather was the only relative who provided her with financial assistance.

Anna again stated that she did not object to Cynthias visits with the child, but she needed help to continue working, have her own time with the child, and pay for another babysitter. Anna stated she understood the importance of the child enjoying her extended family, but my opinion of being a grandparent involves something more than just getting a child when you want it. I feel that [Cynthia] should be more patient with my difficulties due to the fact that her son doesnt bother to pay any support towards his daughters needs. More importantly, I see no reason why the grandparent that has put forth the least effort should be granted more visitation than the one that has demonstrated more effort on [the childs] behalf. Im also concerned about the threats [Cynthia] has made towards me and the fact that in the past she has covered up Brians drug use.

Anna further stated that she offered Cynthia eight hours on Christmas Eve and four hours on Christmas, but Cynthia wanted more time so Anna gave up the child for the entire day on Christmas.

Mr. Wilson, Cynthias attorney, challenged Annas claim that she was fired from her last job. Mr. Wilson stated that two sources reported that Anna quit that job because of a child custody problem, and she fled the area to avoid compliance with the visitation order. Anna replied that was not true because I wouldnt be here if that were the case. Anna also explained she was fired by her boss, Angie, because she was not able to appear for her work shift.

Mr. Wilson disputed Annas claim that she had a babysitter, and stated Cynthia had always dealt with the maternal grandmother when exchanging the child. Mr. Wilson also disputed Annas claim that Cynthia demanded overnight visits in exchange for child support, or that Cynthia made threatening telephone calls. Mr. Wilson further stated that Annas older son, who was eight years old, used swear words against Cynthia in Annas presence, and such behavior showed no one controlled the boy. Anna admitted her son told Cynthia to burn in hell or something, but explained her son was very upset at Cynthia because he never got to spend time with his sister.

The court asked Mr. Wilson about Annas allegations regarding an evil letter. Mr. Wilson presented the court with a copy of the letter.

MR. WILSON: ... I believe this is a copy of the letter that was, in fact, given to herand your Honor can certainly read itI dont believe there is anything in here that is terribly threatening in any manner, but [I]ll be more than happy to give it to the Court if you would like to peruse it yourself.^[5]

The court asked Anna to review the letter and whether she had received it. Anna looked at the letter and confirmed it was the letter from Cynthia which was full of vile and hateful things.

[ANNA]: She says I have an evil heart. She is writing down stuff that her son [Brian] says. She believes her son. Her son is a junkie. She said she saw some scratches on his neck. This man has beat the crap out of me. He put me in the hospital. He has stabbed me. And she is saying I chased him with a butcher knife. That is not true. All of this stuff she hears from Brian.

Look at me. Im a little girl and there is this six-foot-three man, and I dont care if she hasI want my daughter to have herI would love more than anything for Brian to be here and to be good and healthy and take care of his daughter, but he is not. I wouldnt mind sharing my daughter with her grandmother, but this stuff in that letter was horrible, evil. Half of the stuff is not even true. And yes, I had an abortion. She hates me. She wont admit it, but she hates me because I had an abortion. And thats something that I have to deal with every day. Im not happy with it. I cant change it, though.

THE COURT: The law of the United Sates is that a woman has a right to terminate a pregnancy because its a decision for the woman. Its an individual decision, a personal decision, and no one should be harassing someone because of the decision that person made. It is a personal decision. No external comments are necessary. I dont think any are desired, and they certainly would be an excellent reason for a judge to not put someone in someone elses presence if they are going to make negative comments.

The court admonished Mr. Wilson that it was incumbent for Cynthia to be polite, courteous, and respectful of Anna if she received visitation.

[THE COURT:] And maam, there are many reasons that people terminate pregnancies, and you need to just make peace with yourself and, if you have done that, forget everybody else.

[ANNA]: I was 17.

THE COURT: Maam, do you hear what Im saying? You dont have to justify that to me. That was your personal decision, which you had the legal and moral right to make. So you might want to work on it for yourself, but you dont have to work on it for me or for anybody else. [][]

[ANNA]: Then she says things in there that arent even true.

Anna stated she received the letter on December 5, 2005, the same day that we were supposed to go to court. Anna stated she was now 28 years old, and she had been involved with Brian since she was 18 and he was 21. Anna again stated Brian regularly lied to his mother about their relationship, and his mother believed everything he said. The court replied, You know, as a mother you can be pretty gullible.

The court asked Mr. Wilson for any additional comments. Mr. Wilson said he had granted an awful lot of latitude to Anna, allowing her to rave on and do her thing, but this is an angry young woman here who basically just doesnt want anybody to see this child. The court noted Anna initially allowed Cynthia to visit the child until she did not like the way that Cynthia was talking to her, whether or not her reasons were sufficient or valid.

Mr. Wilson disputed Annas account of the Christmas visits, and stated Anna voluntarily offered Cynthia additional time with the child on those days. As Mr. Wilson continued his argument, the following exchange occurred:

MR. WILSON: My client is dying to say something and Im not sure exactly what.

THE COURT: Let her whisper it in your ear.

[CYNTHIA]: Is that the only way, through my attorney?

THE COURT: Im trying to get the information that I need to have in about a quarter of the time it would take otherwise. So nobody is actually testifying, because I dont have people under oath. Im getting representations of what testimony would be and argument all rolled into one.

[ANNA]: Can I say what I was going to say now?

THE COURT: No, you cant.

The court stated that it understood the parties positions and that Anna was not opposed to visitation but wanted to schedule it around her work hours. Anna again said that if she wanted to interfere with the visits, she never would have allowed Cynthia to have the child on Christmas Eve and Christmas Day. Anna did not object to Cynthia receiving visitation, but the present order was outrageous and she needed more time with her own child.

The court said it would take the matter under submission and try to work out a visitation schedule so that Cynthia could have the child while Anna was at work, but overnight visitation would wait for the time being. It is important that the mothers work schedule be accommodated, and so thats the first work schedule that I have to accommodate, and so those are the lines along which Im thinking. The court also believed Anna needed anger management and should receive counseling. And, you know, Im not going to claim that life hasnt dealt you a great blow. The father of your child is not available to assist you either physically, emotionally, financially, anything wise, and thats a depressing situation .... The court also intended to read Cynthias letter to Anna.

Cynthias Letter to Anna

As explained ante, Anna informed the court that Cynthia gave her a letter on or about December 5, 2005. Cynthias attorney confirmed the existence of such a letter and presented it to the court. Anna confirmed it was the letter she received from Cynthia, it was marked as an exhibit, and the court agreed to review the letter when it took the matter under submission.

Cynthias letter to Anna consists of four, single-spaced typed pages. It is not dated. It begins:

Anna

Once again Im sitting at my kitchen table writing you a letter. The first letter I wrote you was in April of 1999. When I was writing I was crying so hard that my tears was [sic] ruining the paper. Im sure you remember the letter ....^[6]

Cynthia reminded Anna about her decision to have an abortion in 1999, when she was pregnant with Brians child. Cynthia wrote that Brian begged Cynthia to help him keep the baby. Cynthia also recalled that she offered to help Anna with school, housing, clothing, and even offered her $5,000 if she would keep the baby. Cynthia described Annas appearance when they spoke about the issue:

Your hair was purple you had a ring in your nose, and black lip stick. You had on a see-through white lace blouse and a black leather mini skirt. Your nylons were black and shreaded.

Cynthia also wrote about their conversation about the pregnancy.

I told you the baby shouldnt have to die because you dont want it. I prayed night and day, I had the whole church praying. Brian called repeatedly wanting to know if everything was alright, together we picked out a name, Shanna.

Cynthia reminded Anna that she initially said she would keep the baby, then told Cynthia that she did not mean it. Cynthia wrote that she regularly went to the abortion clinic to try and intercept Anna, and asked people who were regularly outside the clinic to look for Anna. One of these people saw Anna at the abortion clinic and alerted Cynthia.

They tried to convince you what you were about to do was wrong and you would regret it. But that didnt stop you. After I got off work I went to your apartment and stood outside your door and begged you to not go through with it. You cussed at me and told me to go away. I called my friends and we got together to pray.

Cynthia wrote that the next morning, she went to the abortion clinic and confronted the abortionist as he parked his car, and asked him to please not kill this baby that the father of this child desperately wanted this baby. The man replied that it was the womans decision, and Cynthia told him that it would be his hands that killed my grandchild and begged him not to. Later that day, Cynthia received a message from someone outside the clinic that Anna was there. Cynthia wrote that she left work, went to the clinic, confronted Anna, and begged at your feet to not kill this baby. Someone asked Cynthia to leave, and Cynthia told the person that my grandbaby is about to die. The letter continues:

You were determined to get back at Brian in any way you could, you even took the life of your own child to achieve it. Regret, yes you should regret. This precious babys body was literally ripped apart from your womb and you and only you made that decision.

Cynthia wrote that she had a memorial service for the death of this baby at her church, which was attended by Annas older child and Annas mother. Cynthia reminded Anna that Shanna my grandbaby would have been six years old this year, and she had a memorial service every year to her memory and the thousands of other babies that are killed by abortion. Cynthia reminded Anna that she tried to convince Brian not to allow Anna to move into his apartment, but Brian wanted to help Anna and her older child.

Who would of ever thought that when he tried to help you and your baby, that you would take the life of his own child. Anna what you did was wrong and I will forever feel the loss. I have forgiven you Anna but the pain doesnt go away.

Cynthia next wrote about another incident when she had a feeling that something was wrong with Anna. Cynthia went to Annas apartment and discovered she had taken all her pills. She took Anna to the hospital, and picked her up from the mental health department and took her home. You were surprised that I didnt hate you. I told you that I didnt hate you, I hated what you did.

You continued down your road of destructive behavior until you lost [your older son]. I have to say it was a blessing to know that [your older son] was in a safe and loving household. Away from all the violate [sic] behavior, filthy and obscene language, drinking, drugs, smoking, illegal activities, loud and ungodly music, parting [sic] all hours of the night, unsanitary living conditions, lack of any parental guidance, and inadequate nutrition. This precious little child has been subjected to so much.

Cynthia recounted another event, when Anna overdosed at McDonalds, an officer searched her backpack, he was stuck by a needle, and he had to live with the fear that he got AIDS or hepatitis from your needle. She also recalled when Anna escaped from a hospital. Anna tried to make it look like Brian is the one that is totally at fault, but Cynthia knew about Annas violent behavior toward Brian. Brians father and stepmother informed Cynthia that Anna chased Brian with a butcher knife and threatened to kill him. Brian arrived at Cynthias house with a two-inch gash by his eye and neck bruises, and said Anna inflicted the injuries and he was finished with her.

Lets not forget the time you set Brian up when you had one of your friends, (I believe her name is Tina) hit you in the face so you could blame it on Brian. You reported it to the police and had Brian arrested and he in fact served time for it. What you did is illegal and you could serve time for it. The written confession that you gave Brians Parole officer will validate that event. Now for your most current confession; attempted murder. You called me and said I was going to be mad at you. I asked why. You said you were driving down Bernard Street and you saw Brian walking. You said you were mad at him because he hadnt given you any money for the baby and that you tried to run him over and then you got out and beat him up. You also said he had a stereo and you took it from him and you then called the police and had him arrested. What a sweetheart you are. You tried to kill my son and you want me to feel sorry for you because he has no money to give you. Once again what you did is illegal and you could serve time for it. (Bolding in original.)

Cynthia wrote that Anna continued to inflict hurt and devastation on her.

It wasnt enough that you had my first grandchild killed now you have deprived me of some of the most precious moments of my only living grandchild. I think the real reason you wont let me spend time with my granddaughter is because YOURE JEALOUS. You dont want her to have any special attention. It has to be all about you. I can remember the countless times you got mad whenever Brian was given anything .... I believe you burned all his clothes twice. How about the time Brian spent a couple hours with me on our birthday and you found out and you took his birthday cake and threw it into the parking lot from the second story where you both were staying. What a loving wife, Oh what a daughter-in-law, oh what a mother.

Cynthia declared that Anna had a wicked heart, and she needed to take a long hard look at the deployable [sic] things you have done and continue to do. Cynthia reminded Anna that she was involved with Wicca and satanic books. Cynthia also reminded Anna there were people willing to testify to the physical abuse she inflicted upon Brian.

... [F]or every story you told me about Brian he can tell plenty of his own. Such as the time you tried to poison him; by putting Comet in his antibiotics, which again is attempted murder. Anna there is one thing I am sure of, both of you have your problems.

Cynthia wished Brian and Anna had never met, but realized Anna wanted Cynthia to be at her mercy if she wanted to see her granddaughter. Cynthia recounted several incidents where Anna promised Cynthia could be with her granddaughter, then changed her plans without caring about the impact on Cynthia.

Im tired of all your obnoxious behavior. My final statement is Ill see you in court!

The letter is not signed.

The Courts Rulings

On February 8, 2006, Judge Mettler issued a ruling on the custody and visitation issues. Cynthias letter to Anna was attached as an exhibit to the ruling. The court noted Brian had voluntarily absented himself from his daughters life by choosing to be a controlled substance addict and is wanted by law enforcement, through his criminal behavior and refusal to seek sobriety, and noted he came to court under the influence. The court noted the case presented an interesting twist on grandparent visitation rights since Cynthia, as the paternal grandmother, wanted to have a relationship with the child in spite of her sons failure to be available to share his visitation time with her. Generally speaking, visitation with a grandparent is positive for a child.

Unfortunately, [Cynthia] sent to [Anna] a letter which shows that [Cynthia] has applied her own religious and moral views to mother, determined that [Anna] comes up short, and freely shared her judgments with [Anna], the mother of her only grandchild. This court is less inclined to allow lengthy visitation to her after reading her letter to the mother. Not many responsible, reasonable parents would want someone around their child who had sent them a letter like this.

This letter is four pages of hateful vitriol, which criticizes and condemns every aspect of the mothers life. Such communications reflect someone who very much believes she should be running and judging the world. The death of a child, a baby, is one of lifes saddest, if not the saddest, events. Reflection on a voluntary termination of pregnancy would be painful for any woman of reasonable sensitivities. To still be subjected to someone elses harping and condemnation after more than six years have passed is almost beyond comprehension. To be subjecting someone to this is insensitive at best and cruel at worst. Evil is not an unreasonable description. No one could reasonably believe that this letter would make the parent of a child want to place that child in the writers care. Writing it shows such poor judgment that this court finds that [Cynthia] needs some counseling from a state licensed counselor (MFCC or LCSW), and therefore orders [Cynthia] to attend at least 12 sessions of counseling at her own expense.

The court stated that as a condition of any visitation, Cynthia was required to promptly enroll in counseling within 30 days, regularly attend at least twice a month, and complete counseling by June 30, 2006. Cynthia was ordered to pay for the counseling. The court would suspend visitation if Cynthia failed to present proof of compliance.

The court found Anna was relatively young and immature so her behavior is somewhat understandable, but Cynthia was old enough to have learned to respect others and to treat them with dignity. The court lauded Annas efforts to rehabilitate herself, compared to Brians conduct in this case. The court found Anna has enough on her plate without adding any monetary costs or claims on her time.

Should [Cynthia] not completely stop communicating with the mother like this, she should not have visitation. No parent should have to expose her child to someone who bears such contempt and deep animosity for the parent. The mother has been through some rough patches, but to her credit she came to court sober, is working, and is the sole provider for [the child]. This is more than can be said for [Cynthias] son, [the childs] father.

The court ordered that when the child was in Cynthias custody, Cynthia could not make any comments, or permit third parties to make any comments, that are judgmental, negative, critical, or unkind with respect to the mother. This prohibition includes comments about the state of the mothers immortal soul or her religious beliefs. The day [the child] comes home and asks mother why mother is going to hell is the day a paid professional visitation supervisor or termination of visits will be necessary.

The court also criticized Anna as immature for keeping the child away from Cynthia for eight months before Cynthia even gave her the evil letter, and for allowing her older son to speak to Cynthia in the manner she described.

Children reared with that mentality seldom become world leaders. Parents should rear children in the way they want them to go as adults. This is the type of evidence that, coupled with other evidence, can result in a change of custody.

The court granted Cynthia visitation with the child up to two evenings a week when Anna was working, from 5:00 p.m. to 8:00 p.m. The court would be very suspicious if Annas work schedule suddenly changed to eliminate her evening shifts. If that happened, the court ordered that Cynthia would have visitation on Tuesdays and Thursdays, from 5:00 p.m. to 8:00 p.m., and on Saturdays and Sundays when Anna was working. Cynthia would provide all transportation. The court again clarified a condition of Cynthias visitation was that she could not allow others to discuss the subjects touched on in her letter to the mother, which include, abortion, Wicca, abuse between Brian and the mother, the mothers clothing, and for what behavior the mother can be prosecuted.

The court also ordered Cynthia to pay Anna $300 a month as day care or babysitting reimbursement, as a condition of the visitation.

This is not intended as any kind of penalty against [Cynthia], but to insure that [Anna] has the funds to hire a quality sitter who is willing to deal with [Cynthia]. The court also suspects that some of the mothers anger is related to having to rear this child with no help from the father and hopes this might help her to see past her anger to the good that come from a child having another person to love her.

The court ordered Anna to attend anger management and parenting classes, and for Cynthia to either pay for or reimburse her for the costs of these classes. Anna was ordered to enroll within 30 days, provide proof of enrollment, attend, and complete the classes. Cynthia could provide childcare while Anna attended these classes. Finally, the court denied Annas request for the civil harassment order, without prejudice to Anna bringing the request again if there are any more letters or communications similar to the four page letter submitted in court.

On February 22, 2006, Judge Mettler issued a supplemental ruling to clarify the custody and visitation order.

Given the father coming to court under the influence of a controlled substance, refusing the court order[ed] drug test, failing to attend mediation several times, and abandoning his own OSC due to his drug addiction, this court concludes that the only appropriate order is sole legal and sole physical custody be awarded to the mother.

The court found Brian had a history of habitual use of controlled substances and was not seeking sobriety, and denied any visitation to Brian until he was in recovery. The court also found the presumption contained in section 3103 did not apply because both parents did not agree that grandparent visitation was not in the childs best interests. However, this visitation is marginally in the best interest of the child. If conduct is repeated, a reasonable court could only conclude that her visitation should stop.^[7]

Appellate Issues

On March 28, 2006, Cynthia filed a timely notice of appeal of the courts visitation order of February 8, 2006.

On April 12, 2006, the court filed the findings and order after the February 22, 2006 hearing, granting Anna sole legal and physical custody, denying Brian visitation until he was in recovery, granting Cynthia visitation under the schedule previously set forth in the minute order, ordering Cynthia and Anna to attend counseling as previously ordered, and ordering Cynthia not to make negative comments about Anna in the childs presence.

On appeal, Cynthia represents herself in propria persona and has filed opening and reply briefs written in narrative form, which contains facts that were not before the superior court, such as that Brian was back in prison as of August 2006. Cynthias opening brief reviews and refutes nearly every line of the reporters transcript and Judge Mettlers rulings in this case. She also restates the allegations raised belowthat Anna interfered with her visitations after the original December 5, 2005 visitation order; Annas older son was disrespectful to Cynthia; and Annas request for a restraining order was based on false allegations against Cynthia.

Cynthia also complains she never had the opportunity to provide character references and witnesses at the January 23, 2006 hearing, her attorney failed to relay vital information to the court at the February 6, 2006 hearing, her attorney was not properly prepared for these hearings, and she tried to speak at that hearing when it became evident that counsel was inefficient, but the court would not allow her to speak.

Cynthia complains the court did not place Anna under oath at the February 6, 2006 hearing, Anna made false statements at that hearing, and the courts ruling was based upon Annas lies. Cynthia asserts Judge Mettler showed partiality toward Anna and extreme discrimination against Cynthia, based on Judge Mettlers acknowledgement at the February 6, 2006 hearing, that no one was being placed under oath.

Cynthia attacks nearly every sentence in Judge Mettlers ruling. She claims there was never any evidence that Brian appeared in court under the influence, he never submitted a positive drug test, and he never refused to seek sobriety. Cynthia states that Brian tried to comply with the court-ordered drug test, but he was at the laboratory for two hours and unable to urinate.

Cynthias primary point on appeal is based on the courts review of her letter to Anna. Cynthia states her attorney, Mr. Wilson, asked her to make notes on the history of the relationship between Anna, Brian, and Cynthia, and to document any notable event up to the present time. Cynthia states the letter was actually the documentation requested by her attorney, and she gave it to Anna as part of the court requirement of disclosure. Cynthia states the court misinterpreted the letter as criticizing and condemning Anna. Cynthia asserts she never discussed her religious beliefs with Anna, and she was never judgmental toward Anna because all the statements [in the letter] were factual and true. The letter only documented the history of events.

[The letter] was not hateful, because I feel no hate towards Anna. Criticizes? Facts are facts; not liking something that someone does to someone else is not criticizing. Documenting hurtful events is not criticizing, especially if the behavior is illegal. Condemn? How could one letter touch on every aspect of Annas life? The letter did not contain any statements regarding her religious beliefs, her political choice, her occupation, her financial status, her intelligence, physical appearance, choice of friends, or her at all. The only statements were in regards to the actions or choices she made that hurt other people.

Cynthia insists she never harped or condemned Anna, but only stated the facts in the letter. She did not call Anna evil, but the letter only documented true events that took place.

Cynthia objects to the courts order for her to attend counseling because of the contents of the letter:

No one has the right to tell someone what they can write. What they do with what they write is another story. The letter was first given to my attorney I told him that the letter really wasnt for Anna, I explained to him it was a history of events that I documented for him and I put it in letter form. I asked if Anna should have a copy, but I did not get an answer.

On the day of the first court hearing I gave it to her. I may have shown poor judgment in giving it to Anna, I can accept that, but making a wrong decision does not warrant state licensed counseling. If that was the case everyone in the world would be required to receive counseling, including counselors and judges.

Cynthia asserts the courts reliance upon the letter showed it was biased and prejudiced against her. Nevertheless, Cynthia declares the letter documented actual facts about the casethat Anna attempted suicide and tried to kill Brian on numerous occasionsand asserts the letter offered facts compared to Annas lies in court.

Cynthia also asserts the courts references about Brians statusthat he appeared in court under the influence, failed to take the court-ordered drug test, and had abscondedconstituted a slap in the face because Brian suffers from serious mental and emotional issues which were not taken into consideration. Cynthia denies she covered up Brians drug use. Cynthia complains the court improperly complimented Anna for getting over the rough patches in her life, being able to work, care for the child, and appear in court:

Rough patches, this is justification for Annas extreme violent behavior? Sometimes these rough patches in a persons life are brought on by their own doing, such as using illegal drugs. Is being sober now something we honor a person for? If so I have never drank in my life or used illegal drugs.

Cynthia objects to the courts order to pay for Annas counseling and babysitting costs, and asserts it is unjust to order a grandparent to make such payments.

It shifts the responsibility to the victim or to another person that was not responsible for someone elses behavior. Having to pay for someone elses bad behavior is a double injustice. Heres a potential mini scenario: In a criminal case; you have a rapist who raped a woman, hes caught and brought to court and found guilty. A ruling is made and the victim is ordered to pay for psychiatric therapy for the rapist. Now where would this make sense especially when the victim had nothing to do with the mental problems of the perpetrator?

Cynthia complains the courts order to reimburse childcare expenses failed to specify how it reached the particular dollar amount, it should have considered Annas receipt of government support, Cynthia should be able to select the daycare provider, and the order failed to consider whether Anna could move away from Bakersfield. Cynthia also complains that an adult parent cannot be ordered to pay for a childs financial responsibilities pursuant to section 3930.

Cynthia objects to the courts order not to discuss Anna or certain subjects in the childs presence, and not to permit other people to have such discussions in the childs presence, because the court assumed that anything said would be negative, it would be impossible to have a discussion with an 18-month-old child, and the court improperly relied upon the letter in making this ruling. Cynthia also asserts it is unjust to order her to attend counseling since Anna caused the problems in their relationship.

Cynthia notes that Judge Hoover initially heard this case, asserts that Judge Hoover stated he wanted to continue to preside over future hearings even though[] he knew he would be moved to the criminal calendar, and declares she would have received a fair trial if she had waited for Judge Hoovers recovery. Cynthia also claims that she gave the letter to Judge Hoover, but that Judge Hoover granted her motion for visitation, and his order showed that Judge Mettler was prejudiced against her. How can two judges ruling [be] so dramatically different.

Cynthias brief requests the following changes to the trial courts order: visitation three days a week plus alternate weekends; alternation of the afternoon visitation to evening visitation; an order that Anna cannot move from Bakersfield or Kern County; Anna has to provide Cynthia with her work schedule; Cynthia selects the babysitter or daycare provider; Cynthia provides babysitting in place of a provider; yearly evaluation by a court-appointed agency to determine if adjustments should be made to Cynthias visitation schedule; and a clear plan of recourse if Anna does not comply with the established terms. Cynthia wants the order to define noncompliance as occurring when Anna fails to have the child available for a scheduled visit, or Anna or her older son harass, threaten, or are abusive to Cynthia. Cynthia also requests this court reinstate Judge Hoovers original ruling, or grant her a new hearing before Judge Hoover or another judge.

Anna also represents herself on appeal, and also engages in a narrative discussion of the allegations she raised before the trial court, the argument and testimony offered below, and the trial courts ruling. Anna states that Brian had been returned to prison twice since the last hearing, and he was currently in Wasco State Prison because he refused to attend a drug treatment program.

Anna admits that she previously refused to allow Cynthia to visit the child, but again asserts Cynthia was very hostile and abusive toward her. Anna states she sought a restraining order against Cynthia because of her conduct, but she never included the child within the request and just wanted Cynthia to leave her alone.

Anna also refutes Cynthias assertions that the courts order was biased toward Anna, and notes the courts order did not favor either party because Anna objects to the courts decision to allow Cynthia to continue to have visitation based on Cynthias verbal statements and the contents of the letter. Anna asserts Cynthia wrote similar lette