Neumann v. Melgar
| Decision Date | 30 July 2004 |
| Docket Number | No. A102872.,A102872. |
| Citation | 121 Cal.App.4th 152,16 Cal.Rptr.3d 754 |
| Court | California Court of Appeals |
| Parties | Irina NEUMANN, Plaintiff and Respondent, v. Hector Jose Barillas MELGAR, Defendant and Appellant. |
Hector Jose Barillas Melgar (Hector) appeals from the termination of his parental rights under Family Code sections 7822 and 7803, and the denial of his motion for a new trial.1 He contends: (1) the judgment is void, and a new trial should have been granted, because the trial court failed to consider a report from family court services (§ 7851, subd. (d)), interview the oldest of the minor children (§ 7891), and consider whether to appoint independent counsel for the children (§ 7861); (2) the court erred in deciding that section 7894, subdivision (b), precluded it from granting a new trial; and (3) the court erred in ruling that Hector abandoned his children within the meaning of section 7822.
In the published portion of this opinion, we conclude that the trial court did not comply with its statutory obligations to protect the best interests of the children under sections 7851, 7891, and 7861. In the unpublished portion, we hold that substantial evidence supported the trial court's conclusion that Hector abandoned the children. Accordingly, we will vacate the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.
Hector and respondent Irina Neumann (Irina) met in Germany in 1986 or 1987 and moved to the United States in 1992. They never married, but are the parents of two children, A. and E., born in August 1992 and April 1995 respectively.
As will be further described post, Irina obtained a domestic violence restraining order against Hector in November 1997. He thereupon vacated the family residence, and by the end of 1997 had both visitation rights and child support obligations. Later, while Hector was jailed for violation of the restraining order, Irina and the children moved. After locating them in 2001, Hector sought modification of the visitation order in April 2002. The court referred the parties to family court services (FCS) for an extended evaluation in July 2002. The following month, Irina filed a petition to declare the minors free from Hector's parental custody and control, and to terminate his parental rights, on the ground he abandoned them by failing to provide support or communicate with them for over a year. (See § 7822.) Trial on the petition occurred on November 19, 2002, and December 17, 2002.
Irina testified that Hector acted violently toward her on a number of occasions. While she was pregnant, Hector slapped her on the head with a shoe. Another time, he hit Irina on the head while she held her baby. Hector also regularly threw things at Irina while she was nursing or holding the baby, and many times struck her with a closed fist and threatened to kill her. Several police reports recorded Hector's violent episodes.
In November 1997, Irina obtained a domestic violence temporary restraining order against Hector, and Hector moved out of their Redwood City home. An order entered in December 1997 required Hector to pay $500 per month in child support and granted him visitation rights. A restraining order issued in March 1998 required that he remain at least 100 yards from Irina, the residence, her work, and the children's school, but granted him joint legal custody of the children and visitation rights.
Nevertheless, Hector violated the restraining order on several occasions, breaking into the house in the middle of the night, chasing Irina with his car, cutting the telephone line, and threatening to kill her. He also failed to adhere to the visitation schedule. As a result, Irina and Hector returned to mediation with FCS in July 1998 at Irina's request. They reached an agreement which called for visitation exchanges of the children to take place at the Redwood City visitation center. The FCS document recording the agreement states: "Both parents shall immediately go there [the visitation center] to register." This agreement was apparently not reduced to a court order.
Irina promptly registered with the visitation center in July 1998, and thereafter checked in with the center periodically. She was advised that Hector had not registered. Hector also failed to comply with the visitation schedule.
On October 14, 1998, Hector was arrested at the Redwood City house following an altercation with Irina's boyfriend (and later husband), Garilov. (As described below, Hector was incarcerated for the offense in June 1999, served about three months in county jail and several weeks in immigration custody, and was then released in October 1999.)
After Hector's incarceration commenced, Irina continued to live with the children at the Redwood City residence, with the same telephone number, until the end of summer 1999. At that point she moved to a small house behind a church. In February 2000, she married Garilov and they moved with the children to Fremont. On February 9, 2000, she apprised the visitation center of her new address. Father Vladimir, at the Russian church she attended, was aware of her whereabouts, and the children were openly enrolled in Fremont public schools. Irina again contacted the visitation center in June 2002, and was told that Hector still had not registered.
According to Irina, she last received a child support payment from Hector in July or October 1998. The children had not received cards, letters, or calls from Hector since July 1998. Hector last visited the children in accord with the visitation schedule in July 1998, although he saw them on occasion thereafter (but no later than October 1998).
Raymond Ojeda was Hector's probation officer with respect to his October 1998 violation of the restraining order and assault on Garilov. In that capacity, Ojeda wrote to the victims (Irina and Garilov) around August 27, 1999, at Irina's Redwood City address, but received no response. He first met Hector in November 1999 after Hector was released from custody. As part of his probation orientation, Ojeda instructed Hector not to contact Irina or Garilov, since there was a "no contact order with the victims in the case."
Ojeda and Hector first discussed Hector's children on December 29, 1999. Ojeda advised his probationer twice to contact his attorney to establish visitation rights, and the second time specifically directed him to have his attorney contact Irina.2 Hector failed to initiate the proceeding to modify visitation until April 2002.
Despite the July 1998 agreement, Hector admitted that he never registered with the visitation center or even contacted them.
Hector testified that he last saw the children the day before he was arrested on October 14, 1998. Although released on bail following his arrest, he did not attempt to contact Irina or the children during the pendency of the criminal matter through May 1999 because, in his words, "I was ordered not to do it." Hector conceded he was never actually ordered not to contact the children,3 but said he did not contact the children "because I was traumatized that if I do anything even to see my children it could get me in trouble by she saying that I follow her or do something."
In June 1999, Hector began serving his jail sentence for violating the restraining order (Pen.Code, § 273.6); he remained in custody for 12 weeks. The immigration service then placed Hector in custody for an additional six weeks, ultimately releasing him in October 1999. According to Hector, he did not communicate with his sons while incarcerated because
Upon his release in October 1999, Hector learned from a neighbor of Irina's former Redwood City residence that she and the children had moved. The next month, he went to the Department of Motor Vehicles to find out where Irina was living, but was informed that information was confidential. He then requested their address from his insurance company, but was told the information was confidential since he was no longer living with Irina. In the beginning of 2000, Hector inquired of FCS to no avail, and learned he could not initiate a proceeding to visit his children without their address. On a friend's suggestion, he next went to the child support division of the district attorney's office, where he was informed that Irina had closed the case and they could not provide him further information. About a month later, Hector contacted a private investigator to try to locate his children, but he "didn't have the funds to pay him for the amount of money."
Hector claimed he never gave up looking for his children. He asked Ojeda and Lewis Guich (who led his domestic violence classes) what he could do to locate his children.4 He also asked his fiancée for assistance. In 2000 and 2001, Hector used Internet services to search for them, but the services "couldn't find the kids even in school records [or] on anything like that." In December 2001, he located an investigator on the Internet who was able to discover the address, whereupon he contacted an attorney to begin the process of seeing his children again. Hector's order to show cause was filed in April 2002.
Hector testified he was very sad and frustrated that he could not see his children for so long, he loved them very much, and they loved him a lot. He wanted to be there for his children for "help and support and help them to be successful persons in life."
In response to questioning...
To continue reading
Request your trial