Why don't custody courts consider evidence? Part 2

This article by Karen de Sá appeared on Thursday, June 11, 2009, in the San Jose Mercury News.To see the original story, click on the title above or copy the link into your browser:

http://www.modbee.com/local/story/739503.html

Did system do right by the children?

Powerless and tormented, a Campbell mother awaits the story her daughter's bones will tell.

The remains of Alycia Mesiti, 14 when she vanished in August 2006, are in the hands of toxicologists and coroners. Since March, when cadaver-sniffing dogs found her body buried in the unkempt yard of her father's former home in Ceres, detectives have scoured for evidence from the girl's petite frame.

Last week, Mark Edward Mesiti was charged with the murder and rape of his daughter. He remains in a Los Angeles County jail on $205,000 bail on unrelated charges of child endangerment and running a methamphetamine lab.

Girl's dad accused of murdering Ceres teen in 2006, as well as drugging, molesting her

With a lengthy criminal past, the 41-year-old still was granted custody of Alycia and her older brother in Santa Clara County Superior Court less than a year before the girl disappeared.

The death of the smiling teen, who loved horses and the singer Shakira, lays bare the intractable choices that Family Court judges face every day, but the tragic outcome has everyone who worked on Alycia's case looking back wondering what more could have been done.

"Dad's story was he was getting phone calls periodically" from the missing girl, said Ceres police Sgt. James Robbins. "But it doesn't appear she ever left the house."

Legal thicket

The family's legal history is a tangle of allegations traded through restraining orders and court filings. A court investigator described Alycia's mother, Roberta Allen, now 39, as an unfit mother who had battled with depression.

Alycia and her brother, now 19 and in the military, were placed in Mesiti's care by the Family Court in November 2005. During the previous seven years, court records show, Mesiti had been convicted of state and federal charges, including bank fraud and drunken driving. He was charged with domestic violence and ordered to attend anger-management classes after pleading guilty to a lesser charge. After failing to comply with court orders to attend drug and alcohol programs, he landed in prison for violating probation.

Nonetheless, Allen described her yearslong legal battle as "very angled toward Mark. I couldn't afford an attorney. He had one."

Over the nine months the children lived with their father before Alycia disappeared, police and child welfare workers fielded repeated warnings of danger in their single-family home in a neat, unremarkable Ceres neighborhood.

Beginning in 2005, the children's court-appointed lawyer, Jonnie Herring, reported her concerns, recommending only a supervised, temporary placement with Mesiti because of "sufficient issues and risks to these minors." In 2006, she reported that Mesiti had failed to comply with court orders to enroll his children in school and remain in touch.

"I am deeply concerned about both minors, especially Alycia," Herring wrote in a report to Santa Clara County Superior Court Judge Vincent Chiarello.

Allen said she also reported that the children often were hungry, subject to abuse and unable to call their mother despite her court-ordered visitation and contact rights. Police confirm they made visits to the home.

Clearly, the Family Court had a complex case on its hands with few ideal options when Chiarello granted Mesiti custody. The legal battle had raged for eight years without resolution. The children had been bounced between aunts and grandparents and, in a reflection of the case's complexity, the judge appointed Herring to grant them an independent voice in court. Their parents had gone through mediation, counseling and psychological evaluations.
"There were a lot of issues with both parents," said Scott Sagaria, a San Jose attorney who represented Mesiti in claims his client made against Allen, including that she'd attempted suicide and once hit her son. Noting that attorney-client privilege limited his ability to discuss the case, Sagaria added: "There was a lot of conduct by the mother in the case where, in my opinion, the court had very little alternative."

'Cases with no good options'

Chiarello, too, has declined to comment. But Supervising Family Court Judge Su-san Bernardini, who spoke only in generalities and not specifically about the Mesiti case, described the difficulty of serving on her bench.
"Cases with no good options are a centerpiece of being a judge in Family Court," she said. "We have to make a decision no one else will make."

In the case of a tragic outcome, she added, "You wonder and you look back and you always say, 'Is there anything anyone could have done?' "

Allen, a former assembly worker now working for a restaurant, was deemed unfit by the court. She had made a frank admission to feeling depressed after what she described as years of persecution by her children's father. Before Chiarello's decision, records show, Allen told the court she had fled multiple states to get away from Mesiti and even to Canada, where she and the children stayed in battered women's shelters.

But while Mesiti's court filings were formal, typed responses from his private attorney, Allen's pleading letters to judges were handwritten. She reluctantly agreed to sign off on the custody order -- in large part, she says, because she could not afford to raise the children without the child support payments Mesiti had been ordered to make.

"There were plenty of red flags going up all over the place," she said, "but they wouldn't see them."
When Alycia disappeared in 2006, Allen said she never believed the girl had run off.

"I knew in my heart of hearts that she was gone, but no one would listen to me. I was fighting with police, saying, 'She's not a runaway, she's a missing person!' " Allen recalled. "But the police stopped taking my calls. They said, 'She'll come home, she'll come home.' "

Years of anxiety

So for 2½ years, Allen went mad with worry. Alycia's disappearance was not elevated to a homicide investigation until the longtime detective on the case retired and Robbins, the Ceres investigations supervisor, ordered a fresh round of interviews.

Robbins declined to give specifics because the case is pending, but he said those interviews turned up "detailed information we didn't have the first time."

Police obtained a search warrant for Mesiti's former home on Alexis Court, which he is said to have abandoned a few months after Alycia vanished.

The case broke open with the discovery of Alycia's remains. Within days, police burst into Mesiti's Los Angeles apartment and said they found evidence of a meth lab. Now, he and the girlfriend he had lived with in Ceres face a series of court hearings on drug and child endangerment charges; the girlfriend's 12-year-old daughter had been living with the couple when they were arrested March 28.

Mesiti was in jail when his daughter's memorial was held in April in a Cupertino chapel. During the service, a lifetime of classic childhood moments beamed from photos spanning her short life: Alycia mugging in an oversized T-shirt, stirring a pot of macaroni and cheese and hugging a Snoopy doll. In the last photos, she posed for her eighth-grade prom, a fleeting brush with adolescence.

For her part, Allen tosses endlessly most nights. She tries to stay focused on her last day with Alycia, when she and her daughter ate tuna sandwiches and splashed in a downtown San Jose fountain.

Their next encounter would be three years later at the Stanislaus County coroner's office in Modesto.
"I couldn't even pick up her personal effects," Allen lamented. "There was nothing. There's just nothing left of her."