Sunday, December 11, 2011

Mother who won't give up faces prison - California


SANTA ANA – The state took Niveen Ismail's son and gave him to somebody else.

Now authorities are trying to lock her up, charging her with going too far to get him back.

Ismail, of Newport Beach, went to trial in Orange County Superior Court this week on a single charge of solicitation to kidnap - the result of a December 2009 meeting with a private investigator and an undercover police officer who was wearing a wire. The charge carries three years.

In the meantime, she is waging her own battle in federal court with civil rights lawsuits that question why California is the only state not to follow a Supreme Court ruling on how to terminate parental rights.

In the criminal case, the prosecution says Ismail asked the investigator to kidnap her then 7-year-old son, Anthony, from his foster family and take him to Mexico or France, where Ismail would pick him up and return to her native Egypt.

But in a videotape of the meeting played in court Thursday, Ismail never appeared to instruct anyone to kidnap her son, although the audio is garbled at times. A potential kidnapping plan is discussed, but Ismail says on tape at least seven times that she just wants to go with another plan: surveillance on her son's foster family in hopes of digging up or manufacturing dirt.

After she insists on Plan A – surveillance – the undercover officer encourages her to give him $2,000 to get a fake passport for Anthony, so that they can at least get started with Plan B, kidnapping, according to the tape. She agrees and emails him a photo of Anthony to use, but then backs out, agreeing only to give him $500 to start surveillance, according to the tape.

As she left that December meeting to go to the bank, she was arrested by Newport Beach police, who had been listening in, according to court records.

The meeting with the private investigator and undercover officer came just a few weeks after Ismail got word that the U.S. Supreme Court had denied her appeal of the legal proceedings that took her son away. (Later, in 2010 and 2011, she filed civil rights lawsuits against most of the agencies involved, which are pending.)

Deputy District Attorney Beth Costello said that Ismail "resorted to the illegal" after her appeals over the adoption case were exhausted.

Ismail's son was taken by the Orange County Social Services Agency in 2005 after she left him home alone, according to court records. Huntington Beach police found her preschool-age son alone in his crib after a neighbor heard him crying.

Social workers came in to take the boy. Ismail, a single mother, had gone to work even though her child care arrangement fell through that day, her attorney, Ann Cunningham said.

In supervised visits, Ismail failed to set boundaries – not giving Anthony time-outs, allowing him a cookie when he didn't finish his meal, social workers reported, court records said.

A fair-haired boy with almond eyes and a winsome smile, Anthony was placed with a "fost-adopt" family in Lake Forest, three months after he was taken from Ismail, and has been with them ever since.

In her lawsuit, Ismail accuses the social workers of deciding early on to adopt her son out to another family and thwart any chance at reunification by incessant fault-finding, such as:

She fed him a tuna fish sandwich during a bowling outing, and tuna got on the ball return.

Her toilet water was blue.

She ordered him an IHOP International Breakfast meal rather than something from the Kids Menu.

At Dave and Busters, on a mid-week afternoon, she allowed her son to use the men's room by himself, while she and a social worker waited by the door.

That last incident was cited by the judge in deciding to terminate reunification efforts, according to Ismail and Cunningham. Taking her son to an establishment with a bar was said to be evidence of bad judgment

Ismail is arguing that the way California severs parental rights is unconstitutional.

In California, a parent's rights can be effectively terminated before anyone has to present "clear and convincing" evidence that they should be, according to a law journal article that she cites in her lawsuits.

The other 49 states follow a Supreme Court precedent that requires a court to find "clear and convincing evidence" of a parent's unfitness before terminating his or her rights. California follows a looser "preponderance of the evidence" standard. That means a mother loses her child if the court rules it's more likely than not she's a bad one.

The California Supreme Court has decided that the U.S. Supreme Court standard doesn't apply here. By the time a California court considers a mother's rights, they are outweighed by the child's bonds with a new family.

Ismail argues that point in her lawsuits, but first she has her kidnapping case, which continues on Monday.

In November 2009, Ismail called several private investigators, prosecutors allege. One of them, Robert Young, had a history as a police informant.

Young testified Thursday that Ismail approached him with a plan either to dig up dirt on the foster couple or to plant something incriminating. At the end of the meeting, she mentioned a Plan B: kidnapping her son and taking him abroad, he said. Young said he'd have to talk to his partner. Then he called the police, and set up another meeting with Ismail, bringing Newport Beach police officer Neal Schuster, who was posing as his partner.

On tape, the "investigators" say they'd be willing to help her get her son back.

"It's not like we haven't done stuff like this in the past," one says.

"Seriously, can you do Plan B," Ismail asks early on. "What if I ask you to fly him to Libya, or France," she asks later.

Otherwise, she continually steers the conversation back to Plan A, saying she'd need a few more weeks to decide about Plan B.

"I think we're going to go with the first one," Ismail tells him. "If A fails.... I was hoping to do A.... Go with A.... I was hoping A would work.... You don't think A would work?.... Maybe you can work on A for a couple weeks.... Why don't you think about Plan A first.... If you want B, that would take at least a month of preparation for me.... I'm really thinking I want to go with A.... We'll start off with A and if that doesn't work out for you.... A would be good.... I'm still debating what to do."

The prosecution needs to prove that kidnapping was actually requested, not just discussed, according to the state's jury instructions for the charge she is facing.


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