The below article is an excerpt from a blog documenting the struggles of Dolcie and her daughter. The court awarded physical custody of a child to the father in this case and from reports is currently denying that Dolcie and her daughter have contact until a visit sometime in 2014.
Now superficially based on the ruling one would assume that Dolcie is an unfit mother, that she must be an alcoholic or that she has either abused her child or the father in this case. Although the loss of time with a child qualifies as irreparable damage, most of us who have dealt with the inhumane rulings of the Riverside Superior Court are aware that we have TIME on our side, as no matter what the court does or what the other parent is capable of we have time to address that fact in what ever capacity is available to us.
Dolcie does not have that time. Her only “mistake” is that she is terminally ill with cancer and the court cited her illness as the factor for the custody decision, citing emotional stability of a child and is currently refusing that a child who loves her mother spend whatever remaining time she has with her.
From the information available there was no evidence presented that Darcy could not care for her daughter that she does not love her or that she is an unfit parent. The court’s discrimination was already addressed by a CA appeal court In Re Marriage of Carney 598 P.2d 36 (Cal. 1979) which is among the most widely recognized decisions to address the custody rights of parents with disabilities. In this case, the mother of two children petitioned the courts to have a previous custody order changed because the father had sustained a spinal cord injury and had quadriplegia. The lower court granted the mother’s motion to change custody, having determined that because of the father’s disability, his relationship with his children would no longer be “normal.” The father appealed the decision, and the case was heard by the California Supreme Court. The California Supreme Court reversed the trial court’s decision, stating that the father’s disability did not suggest a lesser ability to be a good parent to his children. The court felt strongly that the parent-child bond was not merely the ability to engage in physical interaction, and thus the father should not have his parental rights severed or reduced simply because of his disability. In reaching this landmark decision, the court stated:
“On a deeper level…the stereotype [about parents with disabilities] is false because it fails to reach the heart of the parent-child relationship. Contemporary psychology confirms what wise families have perhaps always known—that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of ‘togetherness’ committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about himself, his relationships with others, his system of values, his standards of conduct, and his goals and priorities in life.”
The public policy in California, which the court has to adhere to, is to assure that children have frequent and continuing contact with both parents (section 3020, subd. (b)). Appellate decisions have repeatedly emphasized the trial courts must bear in mind that “preservation” of parental relationships is in the best interest of the child as well as that of the parent [citations] “ In re Marriage of Ciganovich(1976) 61 Cal.App.3d 289, 293; In Re Brandie W. (1984) 157 Cal. App. 3d. 110, 114 [203 Cal. Rptr. 537]. This is in keeping with the avowed intent of the Legislature to insure that minor children have frequent and continuing contact with the both parents after the parent have separated or dissolved their marriage (Civ.Code § 4600).
Undoubtedly the people that care about Dolcie and her daughter and her attorney will continue the battle. However, Dolcie’s case is a question of humanity at this point, by not only the court, but by the other parent. Her child will have the trauma ingrained of being separated from her mother rather than allowing her to spend time with her mother as children internalize and blame themselves. Illness to a child has less impact than deliberately and maliciously separating her from a loving parent. One day she will know the truth.
“Mom – I Love U and i’ll Kiss you when I come back”
730 Evaluator – Diana Herrington testifies at the January 30th 2013 Interim
“As far as I can tell, she has a really good relationship with her mom”
“She’s carrying a burden for her mother”. “She’s worried that her mom will die.” “And I don’t think anyone can take that burden away from her right now.”
“She likes being with her mom, wants to be with her mom, feels she needs to be with her mom.”
“I represent the child’s best interest, and that’s what I have to keep in mind is the child’s best interest.”
“My thought, my thought is that xxx can see her mom definitely on spring break.” “I also believe that Mother’s Day, a long weekend at Mother’s Day would be reasonable.”
“Before that, I’m not really quite sure – – I’m a little divided on having Xxx go back in the month of February in that there – – Xxx is in school.”
Dulcie’s Attorney (Timothy Ewanyshyn): “Assuming that you’re presented with evidence that Dulcie is terminally ill at this time, does that change your recommendation or the way you view this at this time?
“Not to pick hairs but, you know, just if – – if it – – terminal – – terminal illness meant within the – – if there’s a time frame that was up close, yes”. “If it was a longer time frame, possible not”. “But it’s a short time frame, yes”. “If it’s a – – a , you know, if I had – – if a doctor – – if I interviewed her doctor and she and her doctor were to say to me, you know, mom probably will only be here until May, or something, then I would think about adding a visit in February”. “But short of that, I probably wouldn’t.”
Superior Court of the State of California-County of Riverside Commissioner Gregory Olson states/opinions in his 1/30/13 Interim Ruling…I quote:
“I think that what Ms. Herrington was talking about, and she would agree with you, is that we have to understand that Xxx is going to be with her mom and that’s very traumatic and it’s very stressful and she needs to be in an environment that is also nurturing and safe, which I’m not saying it’s not in Illinois, but the bottom line is it’s more – – this is where her comfort level is.”
Commissioner Gregory Olson states/opinions in his 7/15/13 Custody Ruling…I quote: “Either parent is capable of providing a loving and healthy home for her”.
“The court finds that Xxx is a happy and well-adjusted young girl who likes her current school and does well there.
“Xxx puts special emphasis on the importance of her school friends.”
“Father will have primary physical custody in regards to school enrollment purposes.”
“The witness (Diana Herrington) again stated that as to most of the factors, each parent’s situation offered both advantages and disadvantages, but it was the fact that f’s house provided a more emotionally stable environment and Xxx sees her F as more secure because of M’s illness that she recommends that Xxx stay with F if M decides to move to Illinois.
“Ms. Herrington went on to testify that Xxx has done well in school and places a lot of importance on the friendships she has made at school.”
“Xxx relies on his stability”. “Stability was the key factor in her (Diana Herrington’s) recommendation.”
November 17th, 2013
Subject: Help Us to Get Justice for Dulcie…A Public Out Cry and Court of Public Opinion is Requested
The “Mom” mentioned in the opening note of this letter is Dulcie Barth. The note was written by her daughter who just turned 7 years old at the time.
Dulcie and her daughter are much loved members of our family. I have known Dulcie and her daughter since the day they were born. Dulcie is my cousin (Jerilyn Harris’s) oldest daughter and she is my godchild. Dulcie’s daughter is my godchild as well. My oldest son, Brian, and Dulcie are only two months apart in age and have been best friends their entire life. Brian’s oldest daughter and Dulcie’s daughter have become best friends too.
I have had the pleasure of watching Dulcie grow into a very loving, compassionate and hard working woman. She doesn’t run from her challenges, but embraces them. She excelled at her work and in college. Her approach to motherhood is not different. Putting her daughter’s needs ahead of her own comes naturally to her.
On July 17th (2013) Dulcie found out that she lost physical custody to her daughter’s father…Robert Ontiveros of Palm Desert, CA. The California Family Court said that it was because of her cancer and their belief that father’s home and life provides more emotional and physical stability.
All those that actually know Dulcie recognize her as an amazing mother. I and our family take issue and offense with Diana Herrington and Commissioner Olson’s conclusion that Xxx’s time with her mother is “very traumatic”, “very stressful” and “a burden” to bear. I personally have witnessed them together on many occasions since the onset of Dulcie’s illness. Who did these two people speak with? Who assisted them with making their conclusion?
It couldn’t have been anyone of Dulcie’s family or friends. The child is indeed very concerned about her mother. But, I personally can assure you that Mother and Daughter’s time together is nothing more that comforting and nurturing.
She (and her Mom) need this time together now more than ever. Even when Dulcie was recuperating from a chemo treatment she was more of a mother to her daughter than most Mother’s dream of being. Being away from her mother is where the burden lies. The child’s grandparents have ample intelligence and insight into the amount of exposure the child should have to their daughter’s illness. Never at any point was their granddaughter exposed to anything that she could not emotionally handle. Never.
Her father on the other hand…Exposes her to detrimental issues and behavior on an ongoing basis. All we believe ignored by both Diana Herrington and Commissioner Olson. You will see this “look the other way” behavior demonstrated throughout all documents on the site. As a result…Their conclusion that he provides a more stable emotional and physical home and life is without merit to say the least.
Commissioner Olson and Diana Herrington both placed vast importance on their belief that Dulcie’s daughter was established in her school and community. Her daughter just completed 1st grade at the time of the ruling. Key words… “Their belief”. I ask…How established can a 7 year old be in their community.
Four days after learning she lost physical custody of her daughter… The doctors at Siteman Cancer Center informed Dulcie that she is no longer in remission and statistically has only 3 months to less than a year to live.
She is officially at 4 months as of November 19th. The significance of this date is why we are writing to all of you today.
Our family is a Christian family therefore we know that God will take Dulcie to his heavenly home when and if he is ready. However…Statistically time has run out for this loving and nurturing Mom. We believe that Commissioner Gregory Olson (Superior Court of the State of California-County of Riverside) and their representative… 730 Evaluator – Diana Herrington has robbed Dulcie and her daughter from their last days.
Our family clearly recognizes that they all may not be easy days but they are the only days that they will have.
We feel very blessed that Dulcie is currently stable in her life and home. She lives independently in an 1800 sq. ft. self -contained apartment in the lower level of her parent’s home in Edwardsville, IL. Edwardsville is within minutes of our entire extended family and about a half hour from her Doctors at Siteman Cancer Center and Barnes – Jewish Hospital in St. Louis where she is currently in a clinical trial and receiving ongoing medical care.
Our family understands that it takes a village to raise a child. We as a family have always been there for each other emotionally, physically, financially and spiritually since my memory serves me. We are now there for Dulcie and her daughter. Our pastor visits on a regular basis and provides spiritual and emotional support whenever needed. As a result of modern times…He is also accessible through text messaging. Dulcie’s daughter loves to tell pastor jokes. He even used one of her jokes in a sermon one day.
(With her permission of course)
The American Cancer Society:
“Children can and do cope with a loss of significant relationships if they are loved and given enough help by those close to them.”
I cannot imagine being Dulcie. She just turned 40 years old in August. She has been told that she is dying. She has had her only child and the love of her life taken away at the most distressing and critical time in her life.
If that in and of itself is not enough burden to bear. She has been forced to bear the day to day torment of her daughter’s father…Robert Ontiveros during this very trying time. The California courts will simply not help her. Please… “Help Us to Get Justice for Dulcie” …Please. The documents on this site cover a variety of issues and/or subjects. Hopefully you will deem them of interest because Dulcie and her daughter need you. All of you. Dulcie’s attorney (Timothy Ewanyshyn of La Quinta law Group; La Quinta, CA) is working diligently on getting everything completed for an appeal. He believes that Dulcie’s chances are good. Hopefully the California Appellate Court will see the facts before them and overturn the trial court’s ruling based on an abuse of discretion by Commissioner Gregory Olson.
Commissioner Gregory Olson ordered a 730 Evaluation at the first move away hearing April 9th, 2010. Diana Herrington MFT (of Palm Desert, CA) was assigned to the case.
California Rules of the Court
Rule 5.220. Court Ordered child custody Evaluations
Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare and best interest of children with regard to disputed custody and visitation issues.
(1) Maintain objectivity, provide and gather balanced information for both parties, and control for bias;
We believe that the 730 Evaluator Diana Herrington showed great bias and prejudice towards Dulcie throughout the 730 evaluation, the final report to the court and through testimony. We believe that she did not provide a fair and balanced report in regards to Robert and Dulcie personally or as co-parents. It is our belief that she simply did not comply with the CA Rules of the Court.
Can we hold Commissioner Gregory Olson responsible for his final ruling if he relied on Diana Herrington’s report and testimony? We believe the answer is yes. He is the ultimate Trier of Fact. He relied on Diana Herrington’s recommendations when clearly (in our opinion) testimony and evidence during trial should have negated almost everything she had to say. We believe that Commissioner Olson condones unacceptable and detrimental behavior by the child’s father and he simply accepted Diana Herrington’s report/testimony as fact. We also believe that he (and Diana Herrington) inappropriately relied on Dulcie’s cancer and/or terminal illness as “prima facie evidence of her unfitness as a parent”.
There is a case study in California (Burchard v Garay) where the Supreme Court of California refers to William T. Carney…A paraplegic. It was determined that the trial judge had not made a realistic appraisal of the father’s present-day capabilities as a physically handicapped individual. The court found that it was impermissible for the judge simply to rely on the father’s physical handicap as prima facie evidence of the father’s unfitness as a parent. (In this case…Rely on mother’s cancer as prima facie evidence of the mother’s unfitness as a parent).
The court remanded the case, concluding that the judge should have viewed the father as an individual and the family as a whole in determining whether it was “essential or expedient” for the children’s welfare that they be taken from the father.” (In Dulcie’s case…Taken from the mother.)
Can we hold 730 Evaluator – Diana Herrington responsible for the final ruling? Technically no. Again…Commissioner Olson is the ultimate Trier of Fact. Having said that…We do plan on holding her accountable. Not only for Dulcie but for all other unfairly treated parents in the County of Riverside, CA. We believe that competence and ethics are crucial in a custody evaluation. We have concluded that Diana Herrington is not competent. We believe her ethics are questionable.
If you Google Ms. Herrington there are a multitude of other’s that feel the same way. One recent but very controversial evaluation of Ms. Herrington’s made national news under the following heading(s)…“The Tale of the Maha Abdel Rahim Evaluation” and “The Diana Herrington Evaluation has been at the forefront of the Riverside Superior Court Maha Abdel Rahim controversy”
Once Dulcie and (her Mom) Jeri decided to file the formal complaint against Diana Herrington…I (and other family members/friends) received a call.
This my Facebook friends is where I came in. I am proud to say that I am one of the researchers, organizers, copy makers and proof readers for all of the information and/or data compiled One day when we were all working on the project…We asked ourselves, “I wonder what others would think about all of this if they knew what had transpired?” “Are we simply too close to the situation to be fair”? We pondered on it for a while and thought…Let’s ask. Let’s get the opinions of others… Let’s show our friends and otherswhat transpired in the California Courts. Let’s ask for help.
We believe that the above California Rule(s) of the Court (for 730 Evaluations) are clear. The CA Supreme Court’s position on bias towards someone’s health and or handicap is clear to us as well. Yet we believe that a clear and defined bias and prejudice was shown towards Dulcie on this ruling and throughout her entire experience with the California Family Court System. From 2010 to date. Or…Is it just what we as Dulcie’s family believe?
We hope that all of you Facebook friends will provide a “Public Opinion” on the court’s ruling(s), Diana Herrington’s statements, her recommendation and Robert Ontiveros’s overall behavior. We value your opinion(s) and we would value your help. Please help us get justice for Dulcie.
The appeal process will take time. The most that we can hope for is a court date sometime early 2014. Probably longer. As a result of Dulcie’s dire prognosis…Time is not on her side.
It is of our opinion…That the California family courts (Mediator Emelinda McGinnis, Commissioner Michael McCoy, Commissioner Gregory Olson and the Court appointed 730 Evaluator….Diana Herrington) have not shown consideration towards Dulcie and her concerns for the child’s safety and wellbeing since the very beginning. We believe that their liberal “Look the other way” statements are unacceptable in a court of law.
The original mediator “Emelinda McGinnis” told Dulcie in 2010 that she should be ashamed of herself for trying to take Xxx away from her father. Dulcie explained that she had no intention of taking their daughter away from her father. She only wanted to take away control. Over bearing and careless control that was not in the best interest of the child.
Emelinda McGinnis, LCSW, Mediator states/opinions in her recommendation for custody to the court dated 9/30/2010…I quote:
“The parties were cooperative and able to agree on all issues except for joint legal custody.” “Mother requests sole legal custody while father request joint legal custody.” “Mother stated she wants sole legal custody because father is selfish and doesn’t make the best decisions.”
“There is no history of domestic violence, substance abuse, and Child Protective Services for this family.” “As such, sole legal custody is not warranted. Therefore, I recommend the parties share joint legal custody of the child.”
Ms. McGinnis would not listen to any of Dulcie’s concerns. A lot more issues were discussed. Important issues. Ms. McGinnis also misstated the facts. Dulcie wanted joint physical custody as well as joint legal custody. For what Dulcie, I and our family believe were a multitude of very good reasons.
Dulcie’s 1st Order to Show Cause, filed July 27th, 2010…I quote:
“I believe that Respondent is a flight risk with our daughter due to his immigration status”.
“On several occasions, Respondent threatened that he could decide not to return to United States.”
“Respondent has always had possession of our daughter’s passport, and has never provided it to me, so he has the ability at any time to take our daughter back to Mexico and keep her there with his family.” Based upon these facts, I request the court to grant reasonable visitation to Respondent in a manner that ensures that he cannot flee the country with our daughter. I request sole legal and primary physical custody of our daughter.”
Dulcie and Jeri tell about one of their first days in the court room. They heard one of the most irrational and unbelievable things in their life. They could not believe their ears. It was at that point that they understood mothers have an uphill battle in California Courts.
A woman and her husband had a hearing scheduled that day as well. When their names were called the husband did not stand up. The commissioner asked, “Where is Mr. Xxx?” The woman responded by saying… “He is in jail again your honor”. “He was drunk and got beat up very badly at a party last night.” “Our 1, 3 & 5 year old were with him your honor.” “The paramedics and police
were called.” “After he was taken to the hospital he was taken into custody.” “I had to pick up our children for the third time this month in the middle of the night at the jail.” (Or words to that affect).
She explained how worried she was about her children’s safety. She explained that her husband was a good man but an alcoholic. He would no longer go to work or provide for the family. She had no money to pay the rent or feed the children. She said that she had no family in the Coachella Valley. She said that her parents/family live in Texas. They agreed to take them in and help under the circumstances. As a result…She was requesting the right to move away with the children.
The Commissioner told the mother “I understand that you are worried about your children Mrs. Xxx.” “However…They need to be able to see their father.” “That’s very important to everybody”. “If you move away the children won’t get to spend time with their father”. “I believe that your time would be better spent thinking positively that nothing will happen to your children.” “Move away denied”. “Good luck Mrs. Xxx I hope things get better for you.” Next case… (Or words to that affect)
Dulcie clearly recognizes her mistakes and holds herself accountable for the choices that she has made in life. Therefore…The issue is not whether Dulcie should have become involved with her daughter’s father in the first place or whether she should have done certain things differently. Of course she should of. The relationship with Robert in and of itself was clearly a mistake. We believe that and I can assure you that Dulcie without a doubt believes that.
Part of Dulcie’s nightly prayer is “Thank you God for picking me to be Xxx’s Mommy”. We have heard her say it a million times as well. This little 7 year old girl is one of the sweetest children that God has put on this earth. We are all grateful and thankful to God (and to Robert) that she is in our lives.
We hope that you deem Dulcie’s story of interest. If so…We hope that you will have the time to review, consider and provide your opinion about the information provided to you on this link. We understand that it is a lot of information. Unfortunately a lot has happened since Dulcie (and her family) met Robert Ontiveros on December 17th, 2004. It just didn’t seem appropriate to leave certain things out.
If you agree with our position that Dulcie has been wronged. Please “Help Us to Get Justice for Dulcie”. We want to reunite Mother and daughter again on a day to day basis…For whatever days God gives Dulcie on this earth.
If you agree and/or believe that crimes or injustices have been committed…Please help us to achieve accountability where ever and with whomever accountability should apply.
All efforts small and large will be deeply appreciated. We are hoping for a huge public uprising so that we can achieve our goal(s). Phone calls, letters, media attention whatever…
Thank You All Again,
Candy Bruckert and…The Family of Dulcie Barth