Conservatorship of Cowles
Filed 7/3/13 Conservatorship of Cowles CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
Conservatorship of the Person
and Estate of HEATHER MICHELE COWLES.
B239586
OVANDO J. COWLES,
Petitioner and Respondent,
v.
IDELLE CLARK,
Objector and Appellant.
(Los Angeles
County
Super. Ct.
No. BP088202)
APPEAL from a judgment of the Superior
Court of
County. Marvin M.
Lager, Judge. Affirmed.
Matthew M.
Pope, for Objector and Appellant.
Palermo,
Barbaro, Chinen & Pitzer, Gloria Scharre Pitzer and Philip J. Marr for
Petitioner and Respondent.
__________________________________
This appeal
is the latest in a decades-long custody battle between Idelle Clark and Ovando
Cowles over their daughter, Heather. In
this most recent iteration, Idelle
name="_ftnref1" title="">[1]
challenges the trial court’s renewal of the
prohibits her from communicating or visiting with Heather unless Heather
initiates the contact. We affirm.
FACTS
Idelle and
Ovando were married in August 1985.
Heather was born on October
21, 1986, with various developmental disabilities.
1993, which began what the family court termed a “child custody bloodbathâ€
during which Idelle accused Ovando of sexually molesting Heather. A juvenile court proceeding was initiated as
a result of the accusation and the matter went to trial. At the close of the plaintiff’s case, the
charges of sexual abuse against Ovando were dismissed. The court noted, “the
evidence . . . is not very convincing at all. It does not rise to the dignity of going
forward with this case.â€
When
juvenile dependency jurisdiction
terminated, a bifurcated trial on custody and visitation issues was conducted
in family court, seven years after the divorce proceedings began. The family court issued a bifurcated judgment
on those issues on October 27, 2000. The judgment awarded sole legal and physical
custody of Heather to Ovando. It further
granted limited visitation with Idelle to once a week sessions of conjoint
therapy with Heather. Idelle was
otherwise restrained from coming within 100 yards of Heather or contacting
her.
Attendant
to the judgment was an 82-page statement of decision detailing the evaluations
and reports submitted by Heather’s psychologists, counselors, teachers and
visitation monitors. The reports
uniformly discredited Idelle and her “obsessive focus†on the disproven
allegations of sexual abuse. The
statement of decision chronicled the occasions in which Idelle attempted to or
did pressure Heather into accusing Ovando of molesting her. It also showed how Idelle tried to isolate
Heather so that Heather would rely only on Idelle and never progress to
independence. In a 1994 report, the
court-appointed psychiatrist stated, “I am concerned because it is my
impression that Idelle Cowles, in her need to be enmeshed
with her daughter, eliminates from her daughter’s life those people who will
not agree with her agenda, whether this be the pediatrician, the therapist, her
daughter’s father or the original D.C.S. worker. This is a terribly significant fact, if true,
because Heather will grow up thinking that her mother is omnipotent and will
therefore be unable ever to free herself from her mother’s grasp and develop a
mind of her own.â€
The court
found that Idelle “is a mentally disordered person whose chosen path of conduct
has severely harmed Heather emotionally and who, if permitted unrestricted
contact with Heather, will continue severely to harm her emotionally. While a[n] intelligent and very articulate
person, [Idelle] has substantially no insight into the fact that her conduct is
harmful to Heather – and at this point, she may so enjoy basking in the
self-created limelight surrounding this custody bloodbath that she simply
doesn’t care that her conduct is harmful to
Heather . . . [¶] . . . [Idelle]
will not cease her alienating and other inappropriate conduct unless she is
successful in substantially excluding [Ovando] from Heather’s life.â€
Idelle
unsuccessfully appealed the family court’s decision regarding custody and
visitation to the
States Supreme Court. When Heather
turned 18 in 2004, Ovando sought a conservatorship from the probate court and
that petition was granted in 2005. He
also requested and received an updated restraining order against Idelle, which
was issued on September 30, 2005,
and renewed on September 1, 2009,
by the probate court. Meanwhile, the
family court continued to a bifurcated
trial on division of marital property and a judgment was issued in July 2009. Idelle also appealed from that judgment and
has sought extensions of time to file her opening brief in that case, No.
B218043.
On October 26, 2011, Ovando filed
another request on Heather’s behalf as her conservator to renew the restraining
order. In support of his request, Ovando
cited to examples of Heather’s vulnerability and Idelle’s inappropriate
communications that caused Heather “to have doubts about the past and not let[]
Heather have her own memories and/or move on from the past and develop a
positive future for herself.â€
Ovando
submitted the family court’s judgment and statement of decision which imposed
the initial restraining order. He also
provided a sworn declaration noting that Idelle “engaged in a variety of
stalking behaviors [between October 2000 and October 2004] that included
posting birthday signs in Heather’s neighborhood and nearby her school, driving
past her after-school camp facility, having third parties approach Heather in
public places to discuss her mother, and so forth.†He further observed, “while Heather has
always been permitted to initiate monitored phone calls to her mother, she
ceased doing so in approximately June 2006, because, as I observed, most of
those calls were very upsetting to her.
[Idelle] would oftentimes bring up the divorce and custody battle. Heather grew weary of it and stopped
telephoning.â€
In more
recent communications from Idelle to Heather, Idelle continued to dwell on the
abuse allegations. For Heather’s 24th
birthday, Idelle sent her a gift and a letter, which contained references to
the alleged abuse. Both Ovando and
Idelle testified in the hearing on November 18, 2011. Idelle denied she ever stalked Heather and
testified that she had a good relationship with her daughter. She also presented her email and text
communications with Heather as evidence of their relationship.
The trial
court issued the renewal order on January 3, 2012, to be effective until
December 1, 2013. It prohibited Idelle
and her agents, employees or representatives from contacting or visiting
Heather unless Heather chose to initiate the contact. The order further prohibited Idelle from
stalking Heather, her stepmother or Ovando.
Idelle was also ordered to refrain from asking Heather about her
communications with her lawyer or therapist or from requesting an in person
visit more than once every 30 days.
Idelle timely appealed on March 2, 2012.
DISCUSSION
Idelle
disputes the necessity of renewing the restraining order against her. She contends the trial court abused its
discretion because the facts do not support the decision and the renewal
contravened public policy. We
disagree.
Our review
is governed by Ritchie v. Konrad
(2004) 115 Cal.App.4th 1275 (Ritchie). There, a protective order issued under the
Family Code was set to expire and a petition to renew the order was filed. (Id.
at p. 1280.) The trial court issued the
renewal on the assumption the petitioner was entitled to one “just upon
request†even though the petition was contested. (Ibid.) On appeal, Division Seven of this court held
that a request to renew a restraining order should not be granted simply upon
request if it is contested.
The court
held that it was not enough for the petitioner to have “a subjective fear the
party to be restrained will commit abusive acts in the future. The ‘apprehension’ those acts will occur must
be ‘reasonable.’ That is, the court must
find the probability of future abuse is sufficient that a reasonable woman (or
man, if the protected party is a male) in the same circumstances would have a
‘reasonable apprehension’ such abuse will occur unless the court issues a
protective order.†(Ritchie, supra, at p. 1288.)
Under this objective test, “[a] trial court should renew the protective
order, if, and only if, it finds by a preponderance of the evidence that the
protected party entertains a ‘reasonable apprehension’ of future
abuse. . . . [T]his does not mean the court must find
it is more likely than not future abuse will occur if the protective order is
not renewed. It only means the evidence
demonstrates it is more probable than not there is a sufficient risk of future
abuse to find the protected party’s apprehension is genuine and reasonable.†(Id.
at p. 1290.)
In
evaluating whether the requesting party has a reasonable apprehension of future
abuse, “the existence of the initial order certainly is relevant and the
underlying findings and facts supporting that order often will be enough in
themselves to provide the necessary proof to satisfy that test.†(Ritchie,
supra, 115 Cal.App.4th at p. 1291.)
“Also potentially relevant are any significant changes in the
circumstances surrounding the events justifying the initial
protected parties moved on with their lives so far that the opportunity and
likelihood of future abuse has diminished to the degree they no longer support
a renewal of the order?†(
The trial court should also consider the seriousness and degree of risk,
such as whether it involves potential physical abuse, and the burdens the
protective order imposes on the restrained person, such as interference with
job opportunities. (Ibid.)
In
challenging a renewal order, the restrained party is not permitted “to
challenge the truth of the evidence and findings underlying the initial
order.†(Ritchie, supra, 115 Cal.App.4th at p. 1290.) We review the trial court’s ruling under an
abuse of discretion standard, to determine “ ‘whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.’ †(
413, 420.)
With these
guidelines in mind, we conclude that the trial court did not abuse its
discretion in renewing the restraining order.
As noted in Ritchie, the
underlying findings and facts supporting the initial order here may be “enough
in themselves to provide the necessary proof†to renew the protective
order. (Ritchie, supra, 115 Cal.App.4th at p. 1291.) We need not, however, rely solely on the
findings in the initial order because Idelle has repeated the same behavior
which justified the order in the first place.
It is clear
from the record that Idelle has not moved on with her life and remains obsessed
with the sexual abuse allegations. She
continues to believe they are true and will revise history to conform to her
agenda. In three court filings in 2011
on the appeal of the division of assets judgment, Idelle submitted a sworn
declaration which referred to case “CK14663 filed by LA County in support of
the substantiated allegations of sexual molest made by Heather Cowles against
her father, Respondent Ovando J Cowles herein (bold and underlining
omitted).†Her declaration also stated
that “LA County had years earlier investigated (independent of the Family Law
Court) and substantiated all of our daughter’s allegations of abuse by Cowles
which LA County (NOT Idelle Clarke) in turn alleged in CK14663.†The refrain of abuse is repeated in Idelle’s
brief opposing the renewal request below and in her opening brief in this
appeal. Indeed, she sets forth the
purported evidence supporting the allegations of abuse in the first two pages
of both her brief below and on appeal.
Yet, she fails to mention that those allegations were dismissed.
In a 2009
letter to Heather on her 24th birthday, Idelle wrote, “Back during all the
years when you screamed and banged your head on the walls and floor and begged
me not to make you go visit your father . . . and when you
collapsed while Carol was driving you to a visit with your father and the
paramedics took you to the hospital where you cried and begged the doctors not
to make you visit your Dad, NO ONE could have ever made me believe there would
be a day -- much less years when you would choose not to see me or talk to
me [¶] . . . [¶] I try and tell
myself that you remain under the total control of the man you explained to so
many people hurt you so badly because, like me, you simply do not know how to
get out from under his crushing control.â€
Idelle added, “Trying to fend off your father’s continuing legal attacks
on me and his unending efforts to destroy me has badly hurt my
health . . . [¶]
It was so painful in the hospital when the nurses asked if my daughter
was coming to see me because of course you never cho[o]se to see me anymore.â€
There is
evidence that Heather is particularly vulnerable to manipulation. As an example, Ovando testified that Heather
was convinced by a salesman over the telephone to sign up for a $69 magazine
subscription that she did not want. After
she discussed it with Ovando, she called to cancel the subscription but was
only successful in getting a small discount from the original price. Ovando testified, “I believe in the case of
her mom, where there’s a biological connection, who is both persuasive and can
be very angry and very controlling, that Heather would immediately want to try
to please her, so to speak, and [that] makes her extremely vulnerable to all of
the past problems that we’ve had that I think were a part of the paperwork we
submitted to the court.†In light of this
evidence, it was not an abuse of discretion for the trial court to conclude
that the circumstances necessitating the initial restraining order were
unchanged and there was a reasonable apprehension that Idelle’s conduct would
cause Heather emotional harm in the future if left unchecked.
Idelle
ignores all of this evidence. She
instead contends there were no facts to support the trial court’s ruling, only
Ovando’s “belief and opinion†rather than any testimony from Heather herself. She also limits the definition of abuse and
misinterprets the trial court’s ruling.
compelling.
Ample
evidence supports a finding of a reasonable apprehension of future emotional
abuse. Idelle’s reliance on the evidence
she proferred in the form of texts and emails between her and Heather is an
attempt to have us reweigh the evidence, which we may not do. (Gonzalez
v. Munoz, supra, 156 Cal.App.4th
at p. 420.) That Heather did not testify
is not fatal to the renewal request.
Heather was represented by independent counsel at all times during these
proceedings. Indeed, Heather’s attorney
participated in the hearing and conducted a cross-examination of Idelle. There is no evidence that Heather’s interests
were not protected or that the trial court “unwittingly conspire[ed]†with
Ovando to silence Heather.
We are also
not convinced by Idelle’s claim that there cannot be a reasonable apprehension
of abuse because Idelle never abused Heather.
Contrary to Idelle’s definition, abuse under the Family Code is not
limited to physical abuse or sexual abuse.
It is statutorily defined as including “stalking,
threatening, . . . harassing,
telephoning, . . . contacting, either directly or indirectly
by mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party and, in the discretion of the court, on a showing of
good cause, of other named family or household members.†(Fam. Code, § 6320, subd. (a); & § 6203,
subd. (d).) In In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497, the court
defined disturbing the peace under Family Code section 6320 to be “conduct that
destroys the mental or emotional calm of the other party.†As we have earlier discussed, there is ample
evidence that Idelle’s conduct has, in the past, and could, in the future,
destroy Heather’s mental or emotional calm.
DISPOSITION
The
judgment is affirmed. Respondent is
awarded costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.
suggested in In re Marriage of Smith
(1990) 225 Cal.App.3d 469, 475-476, footnote 1, we refer to the parties by
their first names.
was born with a club foot which required a cast and corrective shoes. She also had severe myopia and strabismus
(crossed eyes) which required two eye surgeries. In a 2003 psychological evaluation when
Heather was 16, Heather was testing at the fourth grade level for reading and
the third grade level for arithmetic. At
that time, she was diagnosed with an unspecified learning disorder, expressive
language disorder and borderline intellectual functioning.
