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Prosecuted for Motherhood

December 8, 2011 permalink

Mother Niveen Ismail continued to love her son even after California terminated her parental rights. That is a crime. Earlier article.



Prosecutor: Mom solicited kidnapping of her son from foster parents

SANTA ANA - A Newport Beach woman solicited to have her 7-year-old son kidnapped from his foster family so she could flee with him to Europe or the Middle East, a prosecutor told a jury here Wednesday.

Niveen Ismail, 45, was desperate to get custody of her son after the court system first removed the boy from her care for neglect, stopped reunification efforts and eventually terminated her parental rights over a period of years, Deputy District Attorney Beth Costello said.

Niveen Ismail

Ismail did everything she could to get back her son, and when she lost her last appeal in the court system as the boy was being adopted by his foster parents, she "resorted to the illegal," Costello said in her opening statements of Ismail's felony trial.

In November 2009, Ismail asked a private investigator to kidnap her son from his foster family in Lake Forest and take him to Mexico in exchange for money, Costello said.

"A desperate act from a desperate woman," Costello said.

Defense attorney Ann Cunningham told the jury in her opening statement that Ismail "obviously never stopped loving" her son, but she did not solicit his kidnapping.

Instead, Cunningham said, Ismail wanted the private investigator to get information on the foster parents that would persuade a judge to remove the boy from their care so he could be raised in a home where Ismail could keep track of him.

"She never asked to have her child kidnapped," Ismail said.

Ismail is being tried before a jury in Superior Court Judge Michael Hayes' court on one felony count of solicitation to commit kidnapping charge.

If convicted, she faces a maximum sentence of three years in state prison.

Source: Orange County Register

Addendum: A further article clarifies. Mother Niveen Ismail tried to get her son back by legal means. When she started making a good case in court, the state decided to set her up by sending undercover cops to entice her into criminal acts. She refused to go along with the criminal suggestions, but the state is prosecuting her anyway. The article includes a list of the petty infractions the state used to justify terminating her parental rights.



Mother who won't give up faces prison

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.

Niveen Ismail

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.

Source: Orange County Register

Addendum: Acquitted by the jury.



Mother found not guilty in kidnap case

A Newport Beach woman accused of solicitation to kidnap her son from his foster parents was found not guilty of the charge Thursday afternoon in Orange County Superior Court.

After deliberating for around three hours, a jury found Niveen Ismail not guilty of the single felony charge she was facing.

Niveen Ismail
Niveen Ismail booking photo

Ismail was arrested by the Newport Beach Police Department in December 2009 after a sting, in which a detective posed as a private investigator willing to kidnap her then 7-year-old son.

"We had an intelligent jury that sifted through rumor, innuendo and distraction thrown at them by the prosecution," Ismail's attorney, Ann Cunningham, said. "The case was all on tape."

On that tape, which was played in court, Ismail discusses a potential kidnapping with the officer and a private investigator, but is never heard to actually request it. Rather, she repeatedly turns the conversation back to a plan to conduct surveillance on the foster family.

Ismail's preschool-age son was taken from her in 2005, after police found him home alone. Three months later, he was placed with a foster family that has since adopted him.

The actions that were on trial took place shortly after Ismail's parental rights had been terminated.

The prosecution accused Ismail of shopping around for someone willing to kidnap her son, Anthony, take him across the border to Mexico, and possibly fly him overseas, where she would meet up and return to her native Egypt.

Deputy District Attorney Beth Costello presented circumstantial evidence that suggested Ismail had been considering a kidnapping: internet searches she'd done for driving directions from the foster family's city to the Mexican border, flight information from Mexico to Europe, a half-completed Egyptian passport application.

But the charge requires evidence of more than planning or considering; an actual request has to be made.

A private investigator named Robert Young testified that Ismail raised the possibility of a kidnapping at the end of their first meeting, phrasing it as a "what if."

Young set up a second meeting, bringing the undercover officer, who posed as his partner.

The prosecutor presented two theories for the jury to accept: either Ismail solicited kidnapping on the tape they watched, or she did it during the first meeting with Young.

But she repeatedly acknowledged that there's no one point on the tape where Ismail solicits a kidnapping.

"Does there have to be one particular sentence where there's a request," she asked the jury. "Her actions speak louder than any particular word," she said later.

Throughout the meeting of more than an hour, Ismail steers the conversation to a Plan A, surveillance, while the undercover officer keeps steering it back to Plan B, kidnapping.

Then the detective tries to get her to agree to give him $2,500 - $500 for surveillance and $2,000 to get a fake passport for Anthony. On the tape, Ismail emails him a photo to use, but then backs out, agreeing only to get the $500.

Cunningham told the jury the tape proved there was no solicitation.

"How scary would this case be if you didn't have the film," she asked.

Costello's take on the agreement reached: "Who cares how much money it was or what it was for?"

"Clearly, this is all a huge misunderstanding," she told the jury sarcastically. "This is all a terrible coinkidink."

The jury heard testimony from attorney Shawn McMillan, who won a landmark judgment of nearly $10 million against the county in a lawsuit against the local Social Services Agency over social workers who lied and wrongly took a mother's two daughters.

McMillan told the jury that Ismail's hopes for getting her son back through the courts were not over, even though her appeal of the adoption was denied by the U.S. Supreme Court.

The prosecution's theory was that Ismail turned to illegal methods after her legal avenues were exhausted.

Ismail has filed two civil rights lawsuits against most of the agencies involved, arguing that California's method of terminating parental rights is unconstitutional, as it is the only state not to follow a standard for doing so set by the U.S. Supreme Court.

Source: Orange County Register