THAT TIME I WAS A LAWYER
https://rantichrist.blogspot.com/2020/08/the-legal-kidnapping-of-lilian.html#more
Superior Court of California, County of San Diego
1409 4th Ave.
San Diego CA 92101
Petitioner in Pro Per and Appellant – Mathew G. Whitney
Petitioner and Appellant – Amy Leib
Guardians – Becky Leib-Kennedy, Erich Paetow, Gary Kennedy
Petition to terminate guardianship of Lilian R. Whitney
Opening Statement
The burden to prove Lilian’s expedient reunification meets California’s definition of “best interests” is solely on the petitioner. A preponderance of evidence will show that the impediment leading to the voluntary guardianship has been removed, that the parents have overall fitness and stability, and that termination of guardianship is not detrimental to the guardians or Lilian. Counsel charges however, that needlessly forcing Lilian to pledge allegiance to one or another set of adults that equally love her IS detrimental to all parties. Counsel requests that the guardianship of Lilian R. Whitney be terminated (in summary) for the expedient reunification with her parents. However, by forcing the issue of custody, with case A 57192 the guardians have an equal obligation to show that the parents are unfit.
This case comes down to two words at either end of what “Best Interests” may mean – Stable/Benefit. If the parents are “stable” and fit and can prove it with factual evidence, then a more affluent environment, suggested by “benefit” cannot trump parental rights when the guardians have submitted, in Case No. 37-2008-00151240-PR-GP-CTL, nothing but allegations to suggest the parents are unfit, thus violating Rule 4.19.2
D. It is the petitioner’s responsibility to ensure that allegations that parental custody would be detrimental to the minor child, other than a statement of ultimate fact, not appear in the petition. Allegations of this nature must be submitted on a separate document which will be maintained in a confidential envelope. (Fam. Code, § 3041.)
(Adopted 1/1/1990, Rev. 7/1/1996; Renum. 7/1/2001; Rev. 7/1/2002; Renum. 1/1/2006; Rev. 1/1/2011)
The petitioners have provided the following preponderance of evidence as exhibits A – K:
1. Attached as Exhibit A is a two-hour family video compilation (2004-2007) |
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showing love, affection, and emotional ties that exist between parents and Lilian. |
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2. Attached as Exhibit B is a map showing all the community support |
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facilities available within blocks of Mathew G. Whitney’s and Amyellen Leib’s present |
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home. |
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3. Attached as Exhibit C is Lilian’s pre-school evaluation. |
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4. Attached as Exhibit D are letters of recommendation for Mathew from |
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Fine Line Bistro and Lucatelli’s. |
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5. Attached as Exhibit E is a Distinguished Volunteer Award issued by The |
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American Red Cross to Amy(ellen) Leib for work done in 2010. |
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6. Attached as Exhibit F is a copy of Reference Case (GUARDIANSHIP |
OF Steven Michael Barros) |
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7. Attached as Exhibit G is a copy of an article written by Mathew which was |
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published in the Tompkins Weekly newspaper. |
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8. Attached as Exhibit H is a series of photos showing the present residence |
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of Mathew and Amyellen. |
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9. Attached as Exhibit I are Points, Authorities and Supportive Statutes |
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10. Attached as Exhibit J are arguments against Kassandra H. |
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11. Attached as Exhibit K are objections to Guardian Declarations |
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Questions for the guardians:
Was there an oral agreement to return Lilian when the parents were stable?
Points, Authorities, and Supportive Statutes
The best interests statute text Cal. Welf. & Inst §16000 states:
“It is the intent of the legislature to preserve and strengthen a child’s family ties whenever possible, removing the child from the custody of his or her parents only when necessary for his or her welfare and for the safety and protection of the public.”
The right standard for determining best interests according to this statute is based on the necessity of continued guardianship. The Kassandra H. case reveals an issue with California’s contradictory “right standards” definitions. The resulting confusion and ambivalence can be avoided by citing the most relevant cases within Kassandra H. both for and against the petitioner.
We must first take into account that this guardianship was voluntary, Kassandra H. states:
“…at the most basic, commonsense level, there is a difference between a parent voluntarily giving a child up to a guardian and the government coercively taking the child away over the parent's strenuous objections. Obviously, in the latter case, the law must take into account a parent's fundamental right to act as parent to his or her children in light of the state's interest that the children not be abused or neglected. Given the parent's fundamental right and the government coercion necessarily inherent in the dependency process, a showing of detriment to prevent an automatic return is a logical way of balancing the values involved. (Cf. Guardianship of Stephen G. (1995) 40 Cal. App.4th 1418, 1426-1429 [47 Cal. Rptr.2d 409]”
A difference is acknowledged here between voluntary and involuntary guardianships. When voluntary, the parent’s fundamental right to act as parent shifts the burden of showing detriment (to prevent automatic return) to the guardian, thus giving balance to the value of evidence on both sides.
In the following case the relevance is that Lilian’s parents too are unmarried, were not financially able to care for her for a period, and the guardians have a great deal of negative evidence.
“In the relatively more recent case of Guardianship of M.S.W. (1982) 136 Cal. App.3d 708 [186 Cal. Rptr. 430], the guardianship was originally established because an unmarried couple simply were "financially unable" to care for their child. Several years later, they had married, both of them were employed, and they sought to end the guardianship. The trial court heard a great deal of negative evidence about the couple from the guardians (the paternal grandparents) which, the appellate court would later acknowledge, would have justified the trial court in refusing to terminate the guardianship. (Id. at p. 711.) But the negative evidence was contradicted by other evidence. Thus the appellate court, analyzing the case under the venerable substantial evidence test, affirmed the trial court's decision to terminate the guardianship. (Id. at pp. 711-712.)”
ARGUMENT AGAINST KASSANDRA H.
Statement of the Case
Should the guardians claim inherent detriment if termination is granted, counsel objects on the grounds the following portions of Kassandra H. (which would otherwise support the claim of inherent detriment) are unfairly prejudicial evidence, intended to inflame the emotions of the judge or jury.
Argument
The statutory language in Kassandra H. in relation to this case, as to the possible detriment posed to the guardians or Lilian by terminating guardianship is in question.
Assuming both parties love Lilian equally there should be no preference given to the emotional state of the guardians but Kassandra H. takes a sympathetic tone towards the guardians with language like this:
“Children are not dogwood trees, to be uprooted, replanted, then replanted again for expediency's sake. (See Adoption of Michelle T. (1975) 44 Cal. App.3d 699, 707 1239*1239 [117 Cal. Rptr. 856, 84 A.L.R.3d 654], quoting Williams v. Neumann (Ky. 1966) 405 S.W.2d 556, 557 ["`cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment'"].) The law of guardianship necessarily entails higher standards than those applicable to a pawnshop. The idea that children may be temporarily deposited in the hands of some bailee to be recovered at will — like an old lamp that one doesn't know what to do with, so one puts it in storage — is contradicted by the cases and common experience.”
This suggests reunification is invariably more risky than the initial transition from child to ward. Reunification is worded to sound like mental torture as opposed to the celebration of love it is.
“However, any new circumstances justifying the termination of a guardianship must be sufficient to overcome the inherent disruption of tearing a child away from a guardian who is doing a good job of caring for and nurturing the child.”
The sufficiency of new circumstances should not be weighed against the wrongfully presumed “inherent disruption” of reunification. New circumstances should be weighed against how new they are compared to the impediment that led to guardianship. “Tearing a child away…” is clearly biased/evocative language that prioritizes the emotions of the guardian.
“The bottom line is this: The "no longer necessary" language of Probate Code section 1601 necessarily requires a showing of overall fitness on the 1240*1240 part of the natural parent seeking to end the guardianship sufficient to overcome the inherent trauma of removing a successful caregiver.”
“inherent trauma” – again the language assumes reunification is bad, giving favor to the guardian’s emotions.
In Kassandra H.:
“— Don had little or no "psychological relationship with the children" and essentially "function[ed] in the position of a stranger" to them.”
So it may be argued that favor towards the guardian’s emotions be given since a greater bond had been established with the guardians, in contrast to this case, where who is more bonded to Lilian is not in question.
Both parties have demonstrated equal ability to love and care for Lilian, therefore the decision to rescind guardianship lays simply in the strength of evidence.
MOTION IN LIMINE (Brief)
Statement of the Case
The objector’s ignored testimony from the previous Case No. 37-2008-00151240-PR-GP-CTL contains absolutely no evidence to back up their feelings and concerns, conjecture and outright lies. Should any of this testimony be repeated counsel objects on several grounds:
Argument
The declarations of the objectors Buddie Leib, Marc Whitney and the guardians were accepted but were never allowed to be refuted. It is assumed the same evidence will be put in again.
Buddie Leib declares:
“Since neither of them, to my knowledge, have jobs, they are dependent on welfare, food stamps and the local food bank for sustenance.”
OBJECTION: lack of personal knowledge, irrelevant.
“Since any spare money is spent on marijuana, I feel their home does not qualify as ‘stable’.”
OBJECTION: speculation, cumulative.
“…I firmly believe their primary reason for wanting her back is the increased amount of welfare money they would be eligible for if they had her support, but it would primarily be spent on pot and cigarettes, not for Lili’s benefit.”
OBJECTION: lack of personal knowledge, speculation, irrelevant (Public Assistance from DSS in NY does not give significant benefits directly to recipients but landlords).
“When Amy first sent her to San Diego she was fearful, rarely smiled, had dark circles under her eyes, and was full of anxiety.”
OBJECTION: irrelevant (Suggests some causal relation to parents, when in fact Lilian was with Marc Whitney for the two weeks prior to arriving in San Diego).
“Additionally, Mathew, by his own admission, has been physically and verbally abusive to Lili.”
OBJECTION: Hearsay, cumulative
Marc Whitney declares:
“I have observed that her parents, Mathew Whitney, who is my son and Amy Ellen Leib, do not have the resources either financially, emotionally or the awareness necessary to provide for Lilian’s needs.”
OBJECTION: lack of foundation.
“Mathew was required to attend both an out-patient and in-patient drug rehabilitation program as part of a plea bargain with the local court which he has refused to do.”
OBJECTION: lack of personal knowledge.
“The conditions in which Mathew and Amy Ellen live are poor at best and a danger to health at worst. The frequent use of illicit drugs especially marijuana in the apartment seems to be common according to Mathew…”
OBJECTION: speculation, hearsay, cumulative.
“Both parents appear to have social/emotional issues that should be evaluated by a mental health professional.”
OBJECTION: speculation, lack of foundation.
“While I am sure they love Lilian neither appears to have the capacity for self-management or personal accountability to be an effective and responsible parent.”
OBJECTION: lack of personal knowledge.
“Prior to moving to California Lilian was subjected to emotional and at least one instance of physical abuse that I am aware of.”
OBJECTION: hearsay, cumulative.
“I have talked with Lilian privately since her relocation to San Diego and find her to be a very normal little girl in every respect. A condition that would not prevail had she remained with her parents.”
OBJECTION: hearsay, speculation, irrelevant.
“She is no longer fearful, she is not exposed to illegal drug use, nor the people who are part of that subculture. She lives in a good home, in a good neighborhood, with people that provide a physically, emotionally and intellectually nurturing environment, and she should be allowed to stay there.”
OBJECTION: speculation, irrelevant.
The Guardians declare:
“Lili is a bright and happy first-grader at her local public school. Her teacher reports that she is doing very well and that her behavior is always appropriate in the classroom. She has friends, she has play-dates on the weekends, she attends birthday parties, she sings and dances in the living room, and she enjoys the security of her home.”
OBJECTION: irrelevant
“Amyellen and Mathew’s continuing habitual use of marijuana, Lili’s exposure to marijuana cultivation and use, exposure that there is good reason to believe would continue were Lili to return to their home.”
OBJECTION: lack of personal knowledge, cumulative
“Amy and Mathew’s relationship particularly the elements of domestic violence (We have no knowledge of physical violence but are aware of numerous episodes of extreme verbal abuse).”
OBJECTION: lack of personal knowledge
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