Professional Documents
Culture Documents
C071887
IN RE THE MARRIAGE OF
DAVID M. FERRIS AND SUSAN C. FERRIS
DAVID M. FERRIS,
Respondent,
v.
SUSAN C. FERRIS,
Appellant.
TABLE OF AUTHORITIES........................................................................ ii
INTRODUCTION ........................................................................................ 1
CONCLUSION .......................................................................................... 13
sf-336226 i
Page(s)
CASES
Biscaro v. Stern
(2010) 181 Cal.App.4th 702 .................................................................. 4
Chapman v. California
(1967) 386 U.S. 18 ................................................................................. 4
Franco-Gonzalez v. Holder
(C.D. Cal. 2013) 2013 WL 3674492 ................................................... 12
In re Emilye A.
(1992) 9 Cal.App.4th 1695 ............................................................ 10, 11
In re James F.
(2008) 42 Cal.4th 901 .................................................................... 4, 5, 6
In re Jay R.
(1983) 150 Cal.App.3d 251 ................................................................ 11
In re Malinda S.
(1990) 51 Cal.3d 368 ..................................................................... 10, 11
In re Marriage of Petropoulos
(2001) 91 Cal.App.4th 161 .................................................................. 12
In re Sade
(1996) 13 Cal.4th 952 .......................................................................... 11
People v. Allen
(2008) 44 Cal.4th 843 .......................................................................... 10
Salas v. Cortez
(1979) 24 Cal.3d 22 ................................................................. 10, 11, 12
sf-336226 ii
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
sf-336226 iii
INTRODUCTION
Here, the trial courts order has deprived Susan, a disabled and
indigent mother, of contact with her teenage daughter (M) for years. This
deprivation occurred in proceedings in which an unrepresented, disabled,
and indigent mother was pitted against experienced counsel advocating for
Ms father, David. As a result, the information presented to the trial court
was skewed and the unrepresented mother was placed at a decisive
disadvantage. The real question in the case whether it was in the best
interest of the child to lose all contact with her mother went unasked and
unanswered.
Davids brief does not say a single word about the serious
constitutional issues raised in Susans opening brief. Instead, David makes
two arguments. First, he says Susan did not request counsel. The record
proves this claim is false.
1
LEGAL ARGUMENT
Davids contention that Susan did not request counsel is false. (RB
1.) As Susan established in her opening brief, she repeatedly and explicitly
requested an attorney. (AOB 7, 8-9, 34.)
2
Susan began the relevant exchange in attempting to respond to the
trial courts statement that M was somewhere in the underground. She
said Can I -- and was cut off by the judge. (RT 128.) Susan then stated,
I do have the right to speak, and I dont know what is legal. (RT 128,
italics added.) The trial court responded: hold on a second. And then:
You do have the right to speak. Well sort of you have the right to speak.
(RT 128.)
First, David ignores the rule that when a trial court wrongfully
denies assistance of counsel to an unrepresented party, the error is a
structural error infecting a legal proceedings reliability and calls for
3
reversal per se. (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 704; AOB
12-13.) Both the California Supreme Court and the United States Supreme
Court have recognized that the deprivation of a constitutionally protected
right to counsel is the type of error that can never be harmless. (In re
James F. (2008) 42 Cal.4th 901, 914; Chapman v. California (1967) 386
U.S. 18, 23 & fn. 8 [listing right to counsel among constitutional rights so
basic to a fair trial that their infraction can never be treated as harmless];
United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [erroneous
deprivation of counsel of choice unquestionably qualifies as structural
error].)
4
standard.1 David ignores, rather than disputes, the concrete measures
outlined in Susans opening brief to demonstrate how counsel could have
made a difference in this case. (AOB 24-27.)
1
The California Supreme Court has not determined the appropriate
harmless error standard for constitutional errors in civil cases that do not
rise to the level of structural error, but has suggested that such errors would
require reversal unless the error was either harmless beyond a reasonable
5
Susan was unable to successfully juggle the roles of mother, advocate, and
witness.
7
possibility that M was with your brother. (RT 77.) Why? Have you
heard from your brother? What did he say? Counsel could have helped
shed light on Ms disappearance, asking: Can you think of why M might
have run away? When M told you that she had gone to a friends house
and that she did not want to come home that evening because you had
been emotionally abusive to her, what was your reaction? (CT 93.)
When you went to pick up M from the friends house and you told Ms.
Miller that things would not be easy for [M] now what did you mean?
(CT 102.) How long did you sleep in the same bed with M? (CT 30-34.)
Do you think this was appropriate? Did M ever express discomfort with
the situation? You say that when you had your hand down your pants while
you were watching television in the bed that you shared for five months
with your teenage daughter it was because you had jock-itch? (CT 33-34.)
Did you ever get a prescription for this jock itch? Have you smoked
marijuana in front of your daughter? (CT 64.) Did you throw a table that
M was seated at? (Ibid.) Why?
8
(CT 93.) How? Did David call you when M stayed with you? (CT 99.)
What did he say? Did he appear angry? Did you think M was safe with
David?
If (as the trial court suspected) Susan knew where M was (RT 89,
90), an attorney might have shown that David also knew where M was (RT
77) and that Susans motivations were to further Ms best interests.3 An
attorney could have shown the trial court the clear fact that Susan loved her
daughter, that M loved her mother, and, regardless of anything else, this
was a relationship worth preserving. (See Cal. Fam. Code 3020 (b)
[establishing Californias public policy in favor of continuing contact with
both parents].)
3
David contends that the court made a finding regarding Susans
involvement in her daughters disappearance, and that legal representation
would not have altered what had had become painfully apparent about Ms
whereabouts. (RB 3.) The trial court mentioned a finding in the
following exchange: And isnt the reason Mr. Ferris has sole legal
custody and sole physical custody with a no-contact order from you
because you assisted the child into the underground, and the child
disappeared? . . . Wasnt that the finding I made, though? (RT 168, 169.)
The trial court, however, never made a formal finding regarding any
involvement by Susan in her daughters disappearance. (CT at 111-118,
212.) Nor did the trial court make a formal finding regarding Ms
whereabouts during her absence. (Ibid.)
9
assistance of counsel makes a difference in these types of cases and it
would have made a difference in this case.
David does not dispute any aspect of Susans argument that she had
a right to counsel under the due process clause of the California
Constitution. Nor does he challenge Susans assertion that her fundamental
liberty interest in the custody, contact, and care for M is protected by due
process, which applies when the state deprives a citizen of a significant
liberty interest. (Cal. Const. art. I, 7(a); People v. Allen (2008) 44 Cal.4th
843, 862.) David does not dispute that the interest of a parent in the
custody and contact with her child is such an interest. (Salas v. Cortez
(1979) 24 Cal.3d 22, 28; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707
[noting that where the possibility of a loss of custody or prolonged
separation from a child exists, due process is implicated].)
Nor does David dispute that the four factors of the due process
balancing test weigh strongly in favor of a constitutional requirement that
counsel must be appointed before the state may deprive a disabled and
indigent parent of contact with his or her children. (In re Malinda S. (1990)
51 Cal.3d 368, 383.) The four relevant factors weigh heavily in favor of a
right to counsel in this case.
10
(Salas, supra, 24 Cal.3d at p. 28; In re Jay R. (1983) 150 Cal.App.3d 251,
259; In re Sade (1996) 13 Cal.4th 952, 989.)
11
IV. FEDERAL AND STATE LAWS PROTECTING PERSONS
WITH DISABILITIES GAVE SUSAN A RIGHT TO
COUNSEL IN THIS CASE
If the trial court had conducted the required analysis, it could only
have found that such a sanction imposed an undue burden. The trial courts
earlier child support order had left Susan with only $336 per month in
income, (CT 201, 202), and the $2,500 sanction would impose an undue
12
CONCLUSION
For all the reasons explained in her opening brief and here, Susan
submits that the orders challenged by this appeal should be reversed and the
cause remanded to the trial court with directions to appoint counsel for
Susan and to revisit all of the issues that are the subject of the challenged
orders.
By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS
13
CERTIFICATE OF COMPLIANCE
By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS
sf-3362226
14