Professional Documents
Culture Documents
C071887
SUSAN C. FERRIS,
Appellant,
v.
DAVID M. FERRIS,
Respondent.
INTRODUCTION ........................................................................................ 1
STATEMENT OF FACTS ........................................................................... 1
A. Susan Is Disabled and Her Disability Hampers Her
Focus and Emotional Stability in Stressful Situations ........... 1
B. Susan and M Shared a Close Relationship ............................. 2
C. Susan and M had Serious Concerns About Davids
Behavior ................................................................................. 3
D. The Court Deprived Susan of Custody of M in
Hearings Where Susan Was Unrepresented ........................... 3
E. The Trial Court Accused Susan of Assisting in Ms
Disappearance and Deprived Susan of Her Parental
Rights Without Appointing Counsel for Susan...................... 5
F. The Court Allowed David to Send M to an Out-of-
State Lock-Down Facility ...................................................... 7
G. The Court Orders Susan to Pay Attorneys Fees for
Filing the Motion to Prevent David from Sending M
Out of State............................................................................. 9
H. Susan Had Difficulty Pursuing and Arguing Her Case
Without the Assistance of Counsel ...................................... 11
STANDARD OF REVIEW........................................................................ 12
STATEMENT OF APPEALABILITY ...................................................... 13
LEGAL ARGUMENT ............................................................................... 14
I. THE STATE DEPRIVED SUSAN OF ALL CUSTODY
AND CONTACT WITH HER DAUGHTER WITHOUT
DUE PROCESS OF LAW .............................................................. 15
A. Susans Private Interests in the Right to the Care,
Custody, and Contact with Her Child Are
Compelling and Fundamental ....................................... 18
B. The State Suspended Susans Parental Rights in
Proceedings Which Had a High Risk of Error ..................... 20
1. Child Custody Proceedings Have a High Risk
of Error When One Party is Unrepresented .............. 20
2. The Proceedings at Issue Were Complex,
Emotionally Charged, and Carried a High Risk
of Error ...................................................................... 23
3. An Attorney Would Have More Effectively
Prepared, Investigated, and Argued Susans
Case ........................................................................... 24
C. Susan Has a Protected Dignity Interest in Having
Counsel Appointed to Adequately Present Her Case........... 27
D.
The States Interests Also Weigh in Favor of
Appointing Counsel for Susan ............................................. 29
II. FEDERAL AND STATE LAWS PROTECTING PERSONS
WITH DISABILITIES GUARANTEE SUSAN THE RIGHT
TO COUNSEL IN THIS CASE ...................................................... 31
A. Susan Has a Qualifying Mental Disability ........................... 32
B. Susan Made a Reasonable Request for
Accommodation ................................................................... 34
C. The Court Was Obligated to Provide Auxiliary Aids
and Services.......................................................................... 34
D. Susan Was Excluded From Meaningfully Participating
in Her Hearing as Result of Her Disability .......................... 35
III. THE TRIAL COURTS $2,500 SANCTION WAS AN
ABUSE OF DISCRETION ............................................................. 36
A. Failure to Consider Whether a $2,500 Sanction Would
Impose an Undue Burden Was an Abuse of Discretion....... 36
B. Imposing a Sanction Which Would Impose an Undue
Burden Was an Abuse of Discretion .................................... 37
C. The Trial Court Had No Reasonable Justification to
Sanction Susan ..................................................................... 38
CONCLUSION .......................................................................................... 40
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Adoption of Baby Girl B.
(1999) 74 Cal.App.4th 43 .................................................................... 12
American Academy of Pediatrics v. Lungren
(1997) 16 Cal.4th 307 .......................................................................... 30
American Council of the Blind v. Paulson
(D.C. Cir. 2008) 525 F.3d 1256 ........................................................... 36
Appellate Defenders, Inc. v. Cheri S.
(1995) 35 Cal.App.4th 1819 ................................................................ 18
Biscaro v. Stern
(2010) 181 Cal.App.4th 702 .......................................................... 12, 36
Bultemeyer v. Ft. Wayne Community Schools
(7th Cir. 1996) 100 F.3d 1281 ............................................................. 34
Clark v. Orange County
(1998) 62 Cal.App.4th 576 .................................................................. 17
Colmenares v. Braemar Country Club, Inc.
(2003) 29 Cal. 4th 1019 ......................................................................... 3
County of Santa Clara v. Super. Ct.
2 Cal.App.4th 1686 (1992) .................................................................. 17
Cuiellette v. City of Los Angeles
(2011) 194 Cal.App.4th 757 ................................................................ 13
Ebersol v. Cowan
(1983) 35 Cal.3d 427, 439 ................................................................... 39
Elkins v. Super. Ct.
(2004) 121 Cal.App.4th 1371 ....................................................... passim
Enrique M. v. Angelina V.
(2007) 41 Cal.App.4th 1337 ................................................................ 14
Filip v. Bururenciu
(2005) 125 Cal.App.4th 825 ................................................................ 39
Franco-Gonzalez v. Holder
(C.D. Cal. 2013) 2013 WL 3674492 ............................................. 32, 35
Guardianship of Ethan S.
(1990) 221 Cal.App.3d 1403 ............................................................... 17
iii
TABLE OF AUTHORITIES
(continued)
Page(s)
Henrietta D. v. Bloomberg
(2nd Cir. 2003) 331 F.3d 261 .................................................... 5, 35, 36
In re B. G. (1974)
11 Cal.3d 679 ....................................................................................... 18
In re Bryce C.
(1995) 12 Cal.4th 226 .......................................................................... 27
In re Emilye A.
(1992) 9 Cal.App.4th 1695 ........................................................... passim
In re Jacqueline H.
(1978) 21 Cal.3d 170 ..................................................................... 17, 19
In re Jay R.
(1983) 150 Cal.App.3d 251 ......................................................... passim
In re Malinda S.
(1990) 51 Cal.3d 368 ..................................................................... 16, 27
In re Marriage of Corona
(2009) 172 Cal.App.4th 1205 .............................................................. 36
In re Marriage of Dupre
(2005) 127 Cal.App.4th 1517 .............................................................. 14
In re Marriage of Petropoulos
(2001) 91 Cal.App.4th 161 .................................................................. 36
In re Marriage of Pollard
(1979) 97 Cal.App.3d 535 ................................................................... 37
In re Sade
(1996) 13 Cal.4th 952 ................................................................... passim
Jensen v. Wells Fargo Bank
(2000) 85 Cal.App.4th 245 ............................................................ 33, 35
Lassiter v. Dept. of Social Services
(1981) 452 U.S. 18. .............................................................................. 16
Moore v. Super. Ct.
(2010) 50 Cal.4th 802 .......................................................................... 16
Ohio v. Barron
(1997) 52 Cal.App.4th 62 .................................................................... 13
Parker v. Harbert
(2012) 212 Cal.App.4th 1172 ........................................................ 13, 38
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Payne v. Super. Ct.
(1976) 17 Cal.3d. 908 .................................................................... 28, 31
People v. Allen
(2008) 44 Cal.4th 843 .................................................................... 15, 28
People v. Ramirez
(1979) 25 Cal.3d 260 ........................................................................... 16
Prillman v. United Air Lines, Inc. (1997)
(1997) 53 Cal.App.4th 935 .................................................................. 34
Salas v. Cortez
(1979) 24 Cal.3d 22 ...................................................................... passim
Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986 ............................................................... 34
Santosky v. Kramer
(1982) 455 U.S. 745 ............................................................................. 23
Turner v. Association of American Medical Colleges
(2008) 167 Cal.App.4th 1401 .............................................................. 13
CONSTITUTION AND STATUTES
Cal. Const. art. I, 7 .................................................................................. 15
California Code of Civil Procedure
904.1.................................................................................................. 14
906..................................................................................................... 14
California Family Code
271......................................................................................... 10, 36, 37
3040............................................................................................. 30, 31
3048................................................................................................... 25
3060................................................................................................... 25
3063................................................................................................... 25
7862................................................................................................... 19
7895................................................................................................... 18
California Government Code
11135..................................................................................... 32, 33, 36
12926................................................................................................. 33
California Welfare & Institutions Code
317..................................................................................................... 19
16000................................................................................................. 30
vi
INTRODUCTION
STATEMENT OF FACTS
1
Security Administration awarded Susan disability payments based on the
injuries she sustained during the rock climbing accident in 2007, which are
her sole source of income. (ACT 7, 11; CT 202.) The Superior Court was
fully appraised about these disabilities. (ACT 3-11.)
After being put on notice about these disabilities, the lower court
witnessed her situational anxiety firsthand. Susan had difficulty juggling
her roles as advocate, witness, defendant, and mother during the
proceedings which led to the court issuing its no-contact order and
prolonging Susans separation from her daughter by permitting her father to
send her out of state. (See Part H., infra.)
When away from her mother, M would miss her. (See, e.g., CT 55,
58, 107.) In an email from M to Susan that Susan sought to introduce in the
custody proceeding in November of 2011, mama I miss u so much, im
crying right now cause I miss u! I wanna see u, but I dont know when. I
want my mama!!! (CT 55.) Immediately before she ran away from her
father, M left a note for her mother stating, I miss you and love you
sooooooooo much. (CT 107.) Susan loves her daughter and misses her.
2
C. Susan and M had Serious Concerns About Davids
Behavior
Susan was also concerned because Ms father had M sleep in his bed
with him for a period of over five months. (CT 16-17; see CT 32-34.) M
was especially discomforted by this situation because her father would put
his hand down his pants in bed while they watched TV. (CT 16-17.)
3
resolve these issues without going to court. (CT 25.) David insisted on
going to court. (Ibid.) Here, his ability to retain an attorney tilted the
balance in his favor. David acknowledged that [M] indicated to [him] that
she really desired a 50/50 custody arrangement. [David] responded that it
was out of [his] hands and that the court would deal with the custody
issues. (Ibid.)
4
restraining order against you . . . Im done with you yelling at me, putting
me down and verbally assaulting me. And when you touched yourself
around me, that was when I told myself I didnt want this anymore. (RT
83:3-8.)
David and his attorney brought Susan into court, accusing her of
aiding in Ms disappearance and seeking an order depriving Susan of
contact with M. (CT 92, 95.) Again, Susan was unrepresented in the
December 9, 12, 13, 14, and 15, 2011 hearings. (CT 111-113, 116, 117.)
On December 13, Susan told the court that she perceived that her lack of
counsel impacted the fairness of the proceedings, saying when you dont
have an attorney as myself . . . the chances of having a fair trial, in my
experience, are less. (RT 81:19-21.) Without appointing Susan an
attorney, the court proceeded with a series of hearings to determine Ms
whereabouts, ultimately issued an order that deprived Susan of contact with
M, and permitted David to send M out of state. (RT 2:18-3:8, 32:2-15, CT
116, 212.)
5
be with his brother. (Ibid.) Instead of concluding that it was likely that M
was with a close relative, the court was convinced that M was at the
mercy of whatever underground is out there that hides children. (RT
13:3-4.) The courts continued references to the underground were
apparent references to an unspecified organization that hides run-away
children. (See, e.g., RT 13:10-16, 59:15-22; 60:21-61:8, 68:13-16, 76:1-
13.)
The court ignored Susans explanation and asked the clerk for a copy
of the penal code. (RT 85:15-16.) Reading out its provisions, the court
stated that the person who keeps or withholds [M], holds or facilitates
the keeping of the child even if thats what the child wants and that such a
person was committing a crime. (RT 88:6-12.) The court stated that it
was a crime to assist or facilitate a child in the underground and that the
courts finding was that Susan was assisting the child in her runaway
and had committed this crime. (RT 87:14-22.) The court then ordered that
Susan return with M. (RT 89:17-19.) The court threatened Susan with
arrest and jail time if M was not returned. (RT 92:15-26.) When Susan
returned without M, the court ordered that Susan no longer had the right to
any contact with her daughter. (RT 109:19-23; CT 116, 117.) The court
contemplated putting Susan in jail for contempt of court for failing to return
6
her daughter, but decided it was not certain beyond a reasonable doubt
that Susan could comply with the courts order. (RT 113:17-24.) The
Superior Court indicated it would turn over the case to law enforcement and
the Child Abduction Unit if possible. (RT 114:22-25.)
After losing all contact with her daughter, Susan repeatedly asked
for an attorney, even going so far as attempting to be held in contempt so
that the court would grant her the request. The transcript of the December
15, 2011 hearing shows that Susan stated: Can you arrest me? . . . And
Id like my Mirandas or whatever, and I do want an attorney. (RT 131:20-
132:10.) The court then ordered Susan jailed for direct contempt of court
for five days, but ignored her request for an attorney. (RT 143:20-144:15;
CT 118.)
7
(CT 172.) On April 12, 2012, Susan filed a motion to consolidate the April
18, 2012 and May 9, 2012 hearings.1 (CT 193-196.)
The trial court told Susan that David could send M to Australia or
any place if he wanted, as he had sole custody. (RT 162:18-25.) The
court told her she has no parental rights and no contact with this child.
(RT 163:1-2.)
Susan could not afford an attorney while living on her meager social
security benefits. Susans sole income was the $1256 per month she
received in social security for her disability. (CT 201.) The Court then
added to Susans inability to afford an attorney on April 18, 2012. (Ibid.)
Following the courts no-contact order with her daughter, the court ordered
that Susan pay monthly child support of $920, including $660 to pay for the
out-of-state lock-down facility that Susan opposed. (Ibid.) This left Susan
with $336 per month in net income and made it difficult for her to afford
basic subsistence or housing, let alone afford an attorney. (See CT 194.)2
1
Desperate to have her daughter returned to Sacramento and back to
her normal middle school, Susan hired an attorney to help her file the Order
to Show Cause to return M to California and to appoint M an attorney. (CT
172-174.) Susan was barely able to retain Mr. Frumpkin for the April
hearings, and could not afford his services for the May 9 hearing. (CT
194.) Susan filed a notice of substitution of counsel indicating she again
was without representation on April 30, 2012. (CT 209.)
2
Not only was she ordered to pay monthly child support of $920,
but the order also immediately created a $1700 child support arrearage.
The court made $260 per month retroactive for four months and an
additional $660 per month was made retroactive one month, totaling $1700.
(CT 201.)
8
case due to the lack of an attorney. (RT 172:14-21.) The court reiterated
that David had the right to make a determination of where to send M
because David had sole custody. (RT 168:11-13.) Susan stated that the
basis for the courts ruling, Davids custody of M, is an issue that needs to
be discussed. (RT 168:11-15.) Susan stated that she would like an appeal
of this custody finding. (RT 168:17-18.) The court asked Susan, Isnt the
reason Mr. Ferris has sole legal custody and sole physical custody with a
no-contact order because you assisted the child into the underground, and
the child disappeared? (RT 168:21-24.) Susan replied that there had
never been an underground, or facts or evidence of any kind. (RT
168:25-26.) The court had never made a formal finding of fact that Susan
had assisted her daughter in hiding from her father. (CT 111-113, 177,
212.) Nevertheless, the court denied Susans motion to prevent her father
from sending M out of state and denied Susans motion to have counsel
appointed for M. (RT 173:12-16; CT 212.)
Davids attorney then asked the court to swear Susan in, and Susan
was sworn. (RT 174:2-7.) Davids attorney questioned Susan about Ms
whereabouts when M had been missing. (RT 174:9-13.) Susan replied that
M had not been in her care. (RT 174:17.) Neither Susan nor the court
questioned David about whether he had discovered where M had been.
(RT 174:17-22.) Nor was he asked if M had been with his brotheras
David had earlier acknowledged was a possibility. (RT 77:18-19.)
Davids counsel sought attorneys fees from Susan for the motion
she filed to return M to California and appoint M counsel, stating that these
motions were frivolous motions that just create litigation. (RT 175:15-
16.)
9
The record shows that Susan was not attempting to create
litigation at all. On March 14, 2012 the court set a hearing regarding child
support payments for April 18, 2012. (CT 167.) This hearing was set
before M was removed from school, on March 23, 2012. (CT 167, 172.)
On April 4, 2012, after M was removed from school and taken to Utah,
Susan filed the motion for M to be returned to California. (CT 172.) The
court set the hearing for this motion to be held on May 9, 2012. (Ibid.) On
April 12, 2012, Susan attempted to decrease litigation and filed a motion to
consolidate the April 18 hearing regarding child support with the May 9
hearing regarding Ms return. (CT 193-196.) This motion was marked No
Hearing. (CT 193.) Despite that, opposing counsel appeared. (RT 151:8-
17.) The trial court denied the consolidation request on April 12, 2012.
(CT 200.) At the April 18, 2012 hearing, counsel for David asked Susan to
drop the May 9 hearing. (RT 175:10-12.)
During the May 9, 2012 hearing, the court asked Susan why she
should not be sanctioned for failing to drop the May 9 hearing. (RT
175:24-25.) In response, Susan stated she had spoken with the court clerk
who had told her that the May 9, 2012 motion could not be dropped from
the calendar because a temporary order was in place. (RT 176:1-4, 177:10-
21, 178:8-9, 178:17-18, 178:27-28.) In response to the question from the
court When you talked to [the court clerk], did you tell [the court clerk]
that you and [opposing counsel] had talked and there was an agreement to
drop it? Susan responded, No. (RT 177:28-178:3.) Despite this clear
10
statement, the court then stated that Susan was avoiding the direct
question and as a result the court assumed you did tell [the court clerk]
that [opposing counsel] agreed to drop it, and it turned out to be false . . .
(RT 178:19-24.) The trial court continued: . . . and I can tell from your
body language that you are not telling me the truth. (RT 178:25-26.)
Susan stated, I am not an attorney, I do not know the process, so I called
the clerk and asked her . . . and she gave me information. (RT 176:26-
177:1.)
During the May 9, 2012 hearing, the trial court did not inquire
whether Susan was financially able to pay the $2,500 sanctions or to pay
that sanction at $25 per month. Nor did the courts order make a finding
regarding whether Susan had the financial ability to pay the sanction. (CT
212; RT 179:3-6.)
The trial court had been informed several times about Susans
financial situation. In her April 12, 2012 declaration requesting
consolidation of hearings, she stated she had limited means and wanted to
avoid two hearings for that reason. (CT 194.) The April 18, 2012 child
support order had left her only $336 per month on which to live. (CT 201,
202.) The trial court was told that Susans income was $500 per month less
than her expenses. (RT 159:12-15.) The trial court acknowledged that the
child support order doesnt leave her [Susan] much to live on. (RT
164:10-11.)
11
desperation to protect M and keep a close relationship with her daughter
clouded her judgment, her interactions with court, her ability to manage her
case, and her ability to clearly articulate her positions before the court. This
led to friction with the judge. (See, e.g., RT 133:2-16, 142:28-143:24.)
Susan interrupted the judge on numerous occasions, sometimes because she
was exasperated, and other times to get more information about the legal
terms the court used. (See, e.g., RT 105:25-106:4, 127:10-23, 128:20-
129:12, 131:6-16, 132:27-133:16, 133:26-28.) With her relationship with
her daughter at stake, it was understandable that Susan was emotional.
Nevertheless, this friction slowed down the proceedings, diverted the
courts focus, and undermined Susans advocacy and presentation of her
own testimony and evidence.
STANDARD OF REVIEW
This Court reviews de novo whether the due process clause of the
California Constitution required the trial court to appoint counsel for Susan
before ordering that she have no contact with her daughter or issuing an
12
order that caused a prolonged separation between Susan and her daughter.
(Ohio v. Barron (1997) 52 Cal.App.4th 62, 67 [constitutional issues
reviewed de novo].)
STATEMENT OF APPEALABILITY
This appeal is from the May 9, 2012 order of the Superior Court of
Sacramento County denying Appellants request for return of her daughter
to California, denying her request that counsel be appointed for her
daughter, and imposing $2,500 in sanctions against Susan. (CT 212.) A
notice of appeal was filed on August 7, 2012, within the time permitted by
California Rule of Court 8.104(a)(1)(C). (CT 217.)
13
The May 9, 2012 order was a final determination of Davids right to
send M to an out-of-state boarding school and constitutes an appealable
order after judgment. (See Cal. Code Civ. Proc. 904.1(a)(2) [an appeal
may be taken from an order made after a judgment made appealable by
Section 904.1(a)(1)]; Enrique M. v. Angelina V. (2004) 121 Cal.App.4th
1371, 1377-1378 [holding order denying request for change in parenting
schedule was an appealable order after judgment].) Because the May 9
order was based on earlier, temporary orders depriving Susan of custody
and contact with M, those temporary orders and the related proceedings are
also reviewable in this appeal. (Cal. Code Civ. Proc. 906.)
LEGAL ARGUMENT
14
reverse the superior courts sanction of $2,500 for failing to consider that
this sanction would impose an undue financial burden on her.
15
present their side of the story before a responsible governmental
official,3 and
(4) the governmental interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
(In re Malinda S. (1990) 51 Cal.3d 368, 383 [internal quotations and
brackets omitted, paragraphs added]; see In re Sade (1996) 13 Cal.4th 952,
991, fn. 18 [noting that the dignity interest is an additional interest which
must be balanced when due process is implicated under article I, section 7
of the California Constitution].)4
16
her child is implicated. In Salas v. Cortez the California Supreme Court
held that indigent defendants had a constitutional right to appointed counsel
in civil proceedings brought to establish paternity obligations. (24 Cal.3d
at pp. 28-29.)5 The California Supreme Court has found that a parent has a
right to counsel when appealing an adverse ruling terminating parental
rights. (See In re Jacqueline H. (1978) 21 Cal.3d 170, 175.)
5
The Court in Salas applied a three-part test to balance the nature
and magnitude of the interests involved, the possible consequences
appellants face and the features which distinguish paternity proceedings
from other civil proceedings against the states interests. (Salas, supra, 24
Cal.3d at p. 27.)
6
A few California courts have declined to find a constitutional right
to counsel where the interests involved were not as fundamental as the
interest in maintaining the parent-child bond. (See, e.g., Clark v. Orange
County (1998) 62 Cal.App.4th 576 [proceedings regarding child support
payments reflect pecuniary interest]; Guardianship of Ethan S. (1990) 221
Cal.App.3d 1403 [no right to counsel for man seeking to retain presumptive
parenthood where the case affects the severance of a parent-child
relationship only in an abstract sense because at the time of suit the
presumptive parent did not claim to be the natural father and had no
existing, defacto parent relationship with the child].)
17
A. Susans Private Interests in the Right to the Care,
Custody, and Contact with Her Child Are Compelling
and Fundamental
After the California Supreme Court recognized that a parent has the
right to counsel on an appeal from the termination of her parental rights, the
legislature codified this ruling. (Cal. Fam. Code 7895; Appellate
Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819 [examining the
legislative history of what is now Family Code Section 7895 and finding
18
that the legislature intended to codify In re Jacqueline H. (1978) 21 Cal.3d
170].) Many other California statutes explicitly provide counsel to parents
and children when custody is at issue. (See Cal. Fam. Code 7862
[providing right to counsel in termination proceedings]; Cal. Welf. & Inst.
Code 317 [providing right to counsel in dependency proceedings where a
parent might be deprived of the temporary custody of her child]; Cal. Rules
of Court 8.403 [providing right to counsel for litigants appealing
judgments dependency proceedings arising from the juvenile court].) The
California Supreme Court has stated that the family court [was] created to
protect children and to preserve and strengthen the childs family ties. (In
re Sade, supra, 13 Cal.4th at p. 959, fn. 1 [italics added, internal quotations
omitted].)
19
findings that they have committed criminal and/or morally condemned
acts. (Emilye A., supra, 9 Cal.App.4th at p. 1709.) Here, the court
accused Susan of committing a crime and threatened to turn over the case to
law enforcement while also questioning her under oath about the
disappearance of her daughter. (RT 87:14-22, 89:17-18, 92:20-26, 114:22-
25.) These facts also weigh in favor of appointing counsel to assist Susan.
20
especially when dealing with the emotionally devastating potential loss
of . . . their relationship with their children].)
21
Reform at the Crossroads, 64 (S. Sugarman and H. Kay edits. 1990.))7
Mothers received physical custody in only 49 percent of the cases in which
only the father was represented by counsel, compared to 63 percent of cases
in which both parents were represented and 86 percent of the cases in which
only the mother had counsel. (Ibid.) If only one parent is represented by
counsel, the information that the ultimate decision-maker receives in order
to make an assessment of each parents custodial capabilities may be
significantly skewed, placing the unrepresented parent at a distinct
disadvantage in the hearing or negotiation process. As a result, a parent
who does not have the assistance of counsel will be at a decisive
disadvantage, thus significantly increasing the risks of an erroneous result.
(See Emilye A., supra, 9 Cal.App.4th at pp. 1709-10 [If the parent is
unrepresented and the county has legal counsel, the contrast between the
two sides, in many cases, would be so tilted in favor of the countys
position that the purpose of the adversarial proceeding, i.e., an accurate and
just decision, would not be obtainable].)
7
Other empirical studies have consistently shown that legal representation
makes a major difference in whether a party wins in cases decided by the
courts. (See, e.g., Bezdak, Silence in the Court: Participation and
Subordination of Poor Tenants Voices in the Legal Process (1992) 20
Hofstra L. Rev. 533; Seron, et al., The Impact of Legal Counsel on
Outcomes for Poor Tenants in New York Citys Housing Court: Results of a
Randomized Experiment (2001) 35 Law & Society Rev. 419.)
22
a formalized adjudicative process, appointment of counsel is the most
effective means of mitigating the risk of error in proceedings which might
result in the loss of parental rightsincluding the right to have any contact
with ones child.
The risk of error is also magnified in family law courts due to the
imprecise legal standards these courts use to make determinations
implicating parental rights. (Santosky v. Kramer (1982) 455 U.S. 745, 762
[holding that due process requires a family court to use a heightened
evidentiary standard in a hearing which may terminate parental rights,
noting that family courts must use imprecise substantive standards that
leave determinations unusually open to the subjective values of the judge
and these magnify the risk of erroneous factfinding].)
23
own daughter (CT 95; RT 85:15-16, 174:9-13); she was threatened with jail
time for this disappearance (RT 92:15-26); the testimony that the court and
opposing counsel sought to elicit from her (but not from her ex-husband)
potentially could have resulted in criminal liability to herself (RT 31:22-
32:1, 77:12-78:2); she faced the possible loss of any contact and
relationship with her daughter; and finally, she believed that her ex-
husbands custody of their daughter endangered Ms emotional and
physical well-being. (CT 16-17.) Time after time during these
proceedings, Susan was forced to juggle multiple roles, first an advocate,
then a witness, and always a mother.
24
At the May 9, 2012 hearing, Susan requested that M not be moved to
the out-of-state lock-down facility. (CT 173-174.) Counsel could have
greatly aided in this effort. First, an attorney would have pointed out that,
because the custody order was a temporary order, the Superior Court was
required to enter an order restraining the person receiving custody from
removing the child from the state pending notice and a hearing on the order
seeking or modifying custody. (Cal. Fam. Code 3063.)8 Second,
counsel would have understood that Susans goals would be best served by
regaining joint custody, and might have made a motion explicitly seeking to
modify the custody order, instead of asking the judge to do this at the
hearing. (RT 168:11-15.) Finally, an attorney would have argued that a
$2,500 sanction imposed an undue burden on an indigent mother who was
already ordered to pay over 70% of her income as child support. (CT 201,
202.)
8
The no-contact and custody orders were ex parte temporary
custody orders under Family Code Section 3060 et seq., as they were
temporary orders setting custody which were ordered in the absence of an
agreement between Susan and David regarding custody. No final orders
modifying custody have been entered. (See Cal. Fam. Code 3048
[requiring that final custody orders comply with certain form and notice
requirements].)
25
The hearings in November and December of 2011 in which the court
severed Susans custody and contact with M would also have been
markedly different with counsel. First, counsel would have established
what Susans overall objectives were before Susan sought primary custody,
and tailored Susans ex parte motion to grant her sole custody in such a way
to avoid an order with the opposite result. (CT 23.) In the December
hearings, in which the court was determining where M was, an attorney for
Susan could have called the father as a witness, including cross-examining
him with regard to the statement that it was a possibility that M was with
his brother. (RT 77:18-19.)
The attorney might have been able to effectively argue that granting
David sole custody and depriving Susan of contact with M was not
consistent Ms best interests. Appointed counsel would have been able to
introduce Ms letter, Ms text messages, and call witnesses to establish that
it was in Ms best interests to continue to have a relationship with her
mother. (See, e.g., CT 16-18, 55, 62, 91, 107.) An attorney for Susan
could have deduced that, if Susan and Ms interests were aligned in M not
living with her father (as evidenced by her letter and her running away) that
the court might be better persuaded by an attorney appointed to represent
M.
26
Susan and would have saved hours of the courts time by better preparing,
investigating, and arguing the case.
The third factor in the due process analysis requires the court to
determine whether the dignity interest in . . . enabling [individuals] to
present their side of the story before a responsible government official
warrants appointment of counsel. (In re Malinda S., supra, 51 Cal.3d at p.
383 [internal quotations and brackets omitted].) The Supreme Court has
struck down local court rules which infringe on this interest. In Elkins v.
Super. Ct., supra, 41 Cal.4th at p. 1367, the Court invalidated a local rule
which required litigants in family court to submit declarations in lieu of
testifying before the court. The Court stated that this rule deprived litigants
of the essential opportunity to tell their story and have their day in
court. (Ibid. [internal citations omitted].) Although the court invalidated
the local rule at issue, it noted that heavy family law caseloads, made all
the more difficult by the high percentage of self-represented litigants,
contributed to a statewide concern with court procedures that do not
27
permit family law litigants to tell their story. (Id. at pp. 1367-1368.)9
9
The court invalidated the local rule because it conflicted with
statutory provisions and declined to resolve the serious constitutional
questions because judicial restraint . . . counsels against rendering a
decision on constitutional grounds if a statutory basis for resolution exists.
(Elkins v. Super. Ct. 41 Cal.4th at p. 1357 [citation omitted].)
28
CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG
D. The States Interests Also Weigh in Favor of Appointing
Counsel for Susan
10
In addition to promoting the interests of the child and parent in a
just outcome, greater accuracy will also promote public trust and
confidence in the court system, a state interest the California Supreme
Court has recognized as a priority necessary to the maintenance of the
justice system. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367.)
29
one-sided proceedings, the court made dubious decisions regarding Ms
best interests. The court decided that it was in Ms best interest to be in the
sole custody of a father who had her share his bed, (CT 16-17) who
frightened her, (CT 64-65) and who eventually sent her away to an out-of-
state lock-down facility to deprogram her. (RT 164:4.).
30
parents is so important, a court must consider which parent is more likely
to allow the child frequent and continuing contact with the noncustodial
parent when determining custody. (Ibid., italics added.)
31
court proceedings. (See Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013
WL 3674492 at pp. *6, 21 (Franco-Gonzalez) [holding that mentally
disabled immigrant aliens facing detention proceedings must be appointed
an attorney to enable them to meaningfully participate in detention
proceedings].)
Under the ADA and California law, a person with a mental disability
impacting her ability to think clearly is disabled. Under the ADA a
32
qualified individual with a disability includes anyone who has a physical
or mental impairment that substantially limits one or more of the major life
activities of such individual including thinking. (42 U.S.C. 12102.)
California law provides greater protections than federal law to persons with
only limited disabilities. Government Code Section 11135 incorporates the
definition of disability from Government Code Section 12926, so that a
person who has any mental or psychological disorder or
condition, . . . such as an emotional or mental illness . . . that limits a major
life activity is a person with a disability. While the ADA requires that the
disability substantially limits one or more major life activities, California
law only requires that it limits such an activity, a less stringent
requirement. (Colmenares v. Braemar Country Club, Inc. (2003) 29
Cal.4th 1019, 1031.) Post-Traumatic Stress Syndrome (PTSD) is a
qualifying mental disability. (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 257.)
The trial court was aware that Susan had a qualifying mental
disability. (ACT 3-11.) Susan had previously submitted letters and
diagnostics from the clinical director at her treatment center stating that she
had a mental disability. Dr. Gerry Shea, the therapist who treats Susan
stated that Susan suffers from Post-Traumatic Stress Syndrome (PTSD)
due to a rape in 2005 and . . . [a] rock climbing accident in 2007. (ACT
3.) This disability gives Susan situational depression and anxiety, mostly
related to custody and court issues around [her] daughter. (Ibid.) The trial
court also noted that Susan was agitated and upset. (RT 133:2-3, 143:11-
144:15.) This was the manifestation of the mental disability that Susan had
disclosed to the court in her medical records.
33
B. Susan Made a Reasonable Request for Accommodation
At least twice, Susan made it clear that she was having difficulty in
this case because she lacked an attorney. (RT 81:19-21; 172:14-21.) Susan
also requested an attorney at least twice. (RT 131:20-132:10; 144:5-6.)
These requests and statements, constituted a reasonable request for
accommodation because the court was on notice about Susans mental
disability, Susan explicitly and implicitly requested an attorney to help her,
and the appointment of an attorney was necessary to provide her with
meaningful access to the court.
34
CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG
aids and services where necessary (28 C.F.R. 35.160 (2003), giving
primary consideration to the requests of the disabled person. (28 C.F.R.
35.104 (2003).) Whether an accommodation is reasonable depends on
the individual circumstances of each case and requires a fact-specific,
individualized analysis of the individuals circumstances and the
accommodations that enable meaningful access to the program at issue.
(Franco-Gonzalez, supra, 2013 WL 3674492 at p. *6) The court did not
conduct any such analysis. The Superior Court neither appointed the
attorney that Susan requested nor engage[d] in an informal, interactive
process in order to attempt to identify a reasonable accommodation for
Susan. (Jensen, supra, 85 Cal.App.4th at p. 261.)
35
F.3d 261, 277-278 [plaintiff need only show that her disability was a
substantial factor in impeding this participation]; American Council of
the Blind v. Paulson (D.C. Cir. 2008) 525 F.3d 1256, 1267.) The court
noted that she was agitated and upset, remarking on her frequent
interruptions and the general friction in the courtroom. (RT 133:2-3,
143:11-144:15.) Susans mental disability prevented her from focusing on
the many the accusations leveled at her by the fathers lawyer as well as the
inquiries and findings made by the trial court. (See, e.g., CT 13:3-4, 77:12-
78:2, 80:18-81:3, 88:6-12, 87:14-22, 174:4-13.) Susan was therefore
excluded from participation in, and unlawfully denied full and equal
access to the benefits of, the Superior Courts services: providing a
fundamentally fair hearing to determine custody issues. (42 U.S.C.
12132; Gov. Code 11135(b).) The May 9 order should therefore be
reversed. (See Biscaro, supra, 181 Cal.App.4th at p. 709 [reversing a case
where meaningful assistance was not provided to a party with a mental
disability].)
The trial court was not permitted to order sanctions under Family
Code Section 271 that would impose an undue financial burden. (Cal. Fam.
Code 271(a); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161,
180.) In determining undue financial burden, the trial court shall
consider the parties income, assets, and liabilities. (Cal. Fam. Code
271(a); In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.)
Here, there is nothing in the record that indicates the trial court considered
whether a sanction would impose an undue financial burden on Susan.
36
B. Imposing a Sanction Which Would Impose an Undue
Burden Was an Abuse of Discretion
Although the trial court ordered that the $2,500 sanction would be
paid $25 per month, this sanction imposed an undue financial burden on
Susan. The trial judge had been informed that Susans monthly expenses
were $500 more than her income. (RT 159:12-15.) Twenty-five dollars per
month is nearly 7.5% of the $336 per month Susan had left after the child
support order. With $336 of income, $25 imposed a severe financial
burden that reduced Susans ability to pay rent and afford basic subsistence.
(See, e.g., CT 64, 194, 202.) Susan would have to pay $25 a month for
over eight years before her obligation would be fulfilled. A payment late
by a mere ten days would accelerate the order and make the entire amount
due. (CT 212; RT 179:3-6.) It is an abuse of discretion for a court to
impose such an obligation upon [a] destitute part[y] which will hang over
the obligor for many years. (In re Marriage of Pollard (1979) 97
Cal.App.3d 535, 539 [holding that an attorneys fees award of $200
(approximately $650 in 2013 dollars) was an abuse of discretion where
imposed on a destitute party].) The courts imposition of a sanction which
would hang over Susan for over eight years was an abuse of discretion.
37
C. The Trial Court Had No Reasonable Justification to
Sanction Susan
Susans testimony as to why she did not drop the May 9, 2012
hearing was uncontradicted. (RT 176:1-179:12.) Susan told the court
during the May 9, 2012 hearing that she spoke to the court clerk about
dropping the hearing but was told she could not do so because a temporary
order was in place. (RT 176:1-4, 177:10-21, 178:8-9, 178:17-18, 178:27-
28.) There was no testimony on the record from the court clerk or from any
other source to contradict Susans testimony about her conversation with
the court clerk. (RT 179:9-12.) It was an abuse of discretion to sanction
Susan for failing to drop a motion which the court clerk had informed her
could not be dropped. (Ibid.)
The trial court attempted to justify its disbelief of Susan in two ways.
First, the trial court stated Susan was avoiding the direct question and as
a result the court assumed you did tell [the court clerk] that [opposing
counsel] agreed to drop it, and it turned out to be false . . . . (RT
38
178:19-24.) However, the trial courts characterization misstates Susans
answers to the courts questions. The trial judge directly asked When you
talked to [the court clerk], did you tell [her] that you and [opposing
counsel] had talked and there was an agreement to drop it? and Susan
directly responded No. (RT 177:28-178:3.) Contrary to avoiding the
courts question, Susan directly answered it. The courts incorrect claim
that Susan was evasive should not be a reason to find her not credible.
Second, the trial court justified its disbelief, stating, . . . and I can
tell from your body language that you are not telling me the truth. (RT
178:25-26.) There is no basis in the record indicating that the trial judge
was able to tell truth from fiction by body language. While the trier of fact
is permitted to disbelieve even uncontradicted evidence, such evidence
cannot be arbitrarily disregarded. (Ebersol v. Cowan (1983) 35 Cal.3d 427,
439; Filip v. Bururenciu (2005) 125 Cal.App.4th 825, 836 [the trier of fact
may only reject the uncontradicted testimony of a witness if it does not act
arbitrarily and has a rational ground for doing so.] [citation omitted].) It
is arbitrary and without rational basis for the trial court to question Susans
claim based solely upon her body language when the court could have
directly asked the court clerk to verify or contradict Susans statement.
Imposing sanctions here constituted an abuse of discretion.
39
marked No Hearing. (CT 193.) Opposing counsels choice to appear
anyway should not be held against Susan.
CONCLUSION
40
Appellant respectfully requests this Court reverse the May 9, 2012
order and remand for further proceedings after counsel is appointed for
Susan.
By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS
41
CERTIFICATE OF COMPLIANCE
By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS
42
CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG