California Court of Appeals, Second District, First Division
[As modified Dec. 19, 2014.]
ORIGINAL PROCEEDING; petition for a writ of mandate. C. Virginia Keeny, Judge. Petition granted. Super. Ct. No. PD054501
[Copyrighted Material Omitted]
Lipton & Margolin, Hugh A. Lipton and Brian Gregory Magruder for Petitioner.
No appearance for Respondent.
Law Offices of Fletcher, White & Adair, Paul S. White; Law Offices of Dacorsi, Placencio & Rumsey and Denise Susan Placencio for Real Party in Interest.
Petitioner in a marital dissolution case moved to have the child custody evaluator removed for bias and her evaluations stricken. The trial court denied the motion. We conclude the court erred in finding insufficient evidence of bias and denying the motion. We grant the petition and issue a peremptory writ of mandate.
This is a marital dissolution case involving hotly contested issues of child custody. Petitioner Leslie O. and real party in interest Thomas O. have one minor child, Wyatt, who was born in 2009 with a condition causing him to have developmental delays and special needs. We set forth the record available to us with the utmost particularity, as the well-being of an unrepresented minor is at stake.
We conclude that, considering the totality of the circumstances, the child custody evaluator’s communications and her conduct in stepping out of her role as an evaluator to help Thomas demonstrate bias sufficient to warrant her removal and the striking of her evaluations.
In September 2012, an (LCSW) (the Evaluator) was appointed as the child custody evaluator in this case. The Evaluator had each parent identify persons with relevant information. Leslie listed Margaret Burr under the heading “Parent’s Psychotherapists (current & past).” The form noted Burr had served as a joint counselor to Leslie and Thomas for four sessions in 2009, and subsequently had become Leslie’s “Individual Counselor, ” seen in 2011 and “recently since divorce proceedings.” The form also listed Stacie A. Gereb, D.O., as Wyatt’s “Primary Pediatrician.”
The Evaluator interviewed Leslie and Thomas individually. She also interviewed many other persons. Thomas contended Leslie suffered from a severe mental illness. At one time he characterized it as “Borderline Personality Disorder.” Leslie feared Thomas had persuaded the Evaluator that Leslie suffered from a severe mental illness and asked her therapist, Burr, to contact the Evaluator to disabuse her of any such notion. Burr e-mailed the Evaluator on November 5, 2012, stating in pertinent part: “I observed—in my [joint counseling] sessions with them—that Tom labeled Leslie’s controlling nature as ‘mental illness, ’ saying she was bipolar. Leslie has told me that Tom’s mother’s therapist (who Leslie has never met) ‘diagnosed’ her as having a personality disorder. [¶] Although I believe these labels are simply part of the negative, angry fighting this estranged couple does... Leslie is concerned
that you may be under the assumption that she has a major mental illness diagnosis. [¶] She does not.”
The Evaluator responded by e-mail, reassuring Burr that the Evaluator was not “assigning any weight to claims of mental illness for Mrs. O[.] that have not been appropriately diagnosed by a professional in a manner consistent with best practices." The Evaluator then indicated she wanted to know how the couple behaved during joint counseling sessions. In particular, she asked about Tom calling Leslie “‘the C word’” and saying things like “‘fuck you bitch’” and other extreme verbal abuse. She also asked about “‘one incident of Leslie striking Tom’” during a joint counseling session.
Burr responded that Tom had been extremely verbally abusive, using a loud voice, and was so agitated and aggressive that she wondered about his impulse control and became concerned about imminent violence and the potential need to call a security guard. She reported Leslie was “more passive overall, ” while Thomas “seemed to have no restraint and bullied her.... [¶] After one session I wrote: ‘Incident on Saturday... he called her ‘cunt’ she walked away. There was a yelling match. Leslie says ‘it got physical—he pushed me and I hit him back.’ I ask her how, she holds both hands palms out, in a shoving motion.... [¶] This is the only time I can recall when anything physical happened while I was working with them, although I inquired each time we met, because of that one time." The Evaluator responded by asking Burr if there was any substantiation that Thomas had called Leslie a “cunt.” Burr was unable to recall. Although her records revealed that Burr was Leslie’s current individual therapist, the record before us indicates the Evaluator did not make any other significant requests to Burr for information about Leslie’s mental health.
On or about November 4, 2012, Wyatt suffered a broken arm and other injuries in a bicycle accident while he was in the care of Thomas. This necessitated a trip to his pediatrician, Dr. Gereb, care by Dr. M. Howell, and serious surgery. Leslie contended Thomas was negligent in failing to protect three-year-old Wyatt from injury, as he had had three bicycle accidents in the four-month period from August through November 2012 while in Thomas’s care. On at least one occasion, Wyatt had sustained a bump on his head in a position that demonstrated to Dr. Gereb that he could not have been wearing a helmet while riding the bicycle.
Apparently in connection with Leslie’s contentions that Thomas was negligent in failing to protect Wyatt, the Evaluator interviewed a neighbor
who said Thomas was an extremely loving father, he was attentive to Wyatt’s safety when Wyatt was on the bicycle, and Wyatt always wore a helmet while on the bicycle. The same neighbor reported that Leslie was unfriendly and controlling and that the neighbor had “‘heard things’” about her. The remarks are referred to in the record as having been included in the Evaluator's evaluation.
Thomas and the Evaluator had communications that suggested to Leslie that the Evaluator was “advising Thomas on specific matters.” On November 7, 2012, Thomas e-mailed Leslie about arrangements for a visit the next day with Wyatt. He concluded by writing: “As far as answering the rest of your questions. I need to talk to [the Evaluator] first. After I talk to her, I will reply to your questions.” On that day, Leslie e mailed the Evaluator: "I am not sure I understand Tom’s response correctly that he must first speak with you before responding. I apologize for my lack of understanding, but wondering if you are advising Tom on specific matters?” Leslie added that Thomas’s statement regarding Wyatt’s bicycle crash on November 4 “has many lies, fabrications and deceptions regarding the truth.” On November 8, the Evaluator responded by e-mail to Leslie. “I am not advising Tom on anything as that would be beyond the scope of my role as Evaluator. However, he sent his 27 hour summary of events to me on Monday, and mentioned that his attorney had asked him to write it. I wanted him to send a copy to you, but needed to be sure this was o.k. with his attorney, as he asked him to write it and may have had a purpose I was unaware of. I did so, and then asked Tom to send it to you after his attorney said it was ok. [¶] . . . [the Evaluator]."
On November 19, 2012, the Evaluator submitted her initial evaluation to the trial court. Neither party has supplied a copy of the evaluation to this court. From the record, we gather the evaluation made 78 references to Leslie’s “mental status, problems and issues.” It also stated a social worker (possibly investigating Wyatt’s bicycle accident injury) “expressed some concern about her [Leslie’s] mental health, and noted that in her view the amount of medical information that [Leslie, who is a nurse, ] conveyed, with regard to the minor, and the way she conveyed it produced a ‘red flag’ for her regarding possible ‘Munchausen’s by Proxy Syndrome’ (see definition in Evaluation Section of this report). She states that she is unclear whether or not [Leslie] has ever had any real mental health assessment, and that a Public Health Nurse who accompanied her to the home visit at [Leslie’s] house also
had ‘the same impression’ regarding [Leslie], and the need for possible further inquiry regarding her mental health. [The social worker] states that overall, and at this time, she is not concerned about the child’s physical safety with either parent.”
Leslie showed the confidential evaluation to Burr immediately. Burr e-mailed the Evaluator on November 20, 2012, asking that the Evaluator make a few changes in her report. Burr wrote, “I currently see Leslie for individual therapy and I have never considered her to have any major mental health condition since she shows unimpaired functioning in her life in all areas other than this one. [¶]... Is it possible to remove the implications of severe mental illness? [¶] Also, there is a slight correction I request in the details relating to the physical violence.” She went on to say that it was a mischaracterization for the evaluation to say Leslie “hit” Thomas when she was merely pushing him away from her when Thomas was behaving in a threatening manner, pushing Leslie. Burr requested that the Evaluator change that part of the evaluation as well.
The Evaluator responded to Burr, representing that she did not realize Burr was Leslie’s current therapist, “or I would have taken more care in quoting you directly.” She denied she had “actually endorsed the idea that Mother [Mrs. O.] has a severe mental illness. It was the DCFS worker who raised the issue of Munchausen’s and because she did, I had to include it in my report as something she brought up. However, in my final analysis, I reserved judgment on the issue, noting that it could be temperament, training, or the wish to do things differently in this custody situation then [sic] she had in the last one with her adult sons. Any of these possibilities is plausible to me, but in my mind, the proof will be in how Mrs. O[.] responds to the reality that she cannot continue in the manner that she has been with regard to her attitude and
behaviors [sic] toward Mr. O[.] because there is no objective support for her positions." The Evaluator acknowledged Thomas had anger issues and that she believed she had made the appropriate recommendations to address these in her evaluation. She added, “I cannot change anything that has already been written as it has been submitted to the attorneys. I will be submitting an addendum, with regard to the parenting plan, related to something I misunderstood from Mr. O[.]’s perspective that must be addressed. But that is a change in the final points of the plan, not in the substance of how I reached the conclusion that the plan should be as I outlined.” In closing, the Evaluator asked, “I am wondering if Mrs. O[.] shared the report with you.”
On November 23, 2012, Burr e-mailed Leslie’s attorneys, stating: “I am quoted in the... custody evaluation in such a selective way that the intent of my reporting is skewed. I have asked the Evaluator to change the wording
she used because it lacks the context in which it was used, but she said the change cannot be made as the document has ‘gone to the attorneys.’ After telling me this, she explained that she was, however, making an addition to the report concerning the custody scheduling. I guess some things can be changed and some cannot.... [¶] Specifically, she quotes me as saying, ‘shoving, pushing and at least one incidence of Leslie striking Tom, ’ and repeats this quote several times.” Burr expressed concern that the statement was incorrect, taken out of context, and “it sounds as though ‘Leslie striking Tom’ was something... which happened repeatedly.” Burr also observed the Evaluator had told her that she had to report the social worker’s comment about Munchausen’s syndrome by proxy simply because it was “brought up.” Burr pointed out that she had brought up something critical of Thomas to the Evaluator, but the Evaluator had failed to include that in her evaluation. She added that the social worker was unqualified to make such a diagnosis of Leslie. Finally, Burr expressed her opinion that the Evaluator was biased against Leslie.
There were other complaints from medical professionals about incorrect, out of context statements and potential bias in the Evaluator's evaluation. Wyatt’s lifelong pediatrician, Stacie Gereb, wrote to the Evaluator on November 27, 2012, expressing concern that, although she was told to expect a call from the Evaluator, the Evaluator had never contacted her. Gereb was extremely critical of Thomas’s inattention to Wyatt’s physical safety, explaining Wyatt had had three bicycle accidents during the four-month period from August through November 2012, all while in Thomas’s care. Apparently in contrast to something in the Evaluator's evaluation, Gereb said Wyatt could not have been wearing a helmet during the second accident due to the location of a bump on his head. Gereb opined that three-year-old Wyatt, who suffered from muscle weakness and clumsiness, should not even have been riding a bicycle. Gereb complained that the Evaluator's evaluation misquoted Gereb’s physician’s note, which had stated that Wyatt was not wearing a helmet during the second accident. The note also explained that Wyatt had broken his arm and had blood in his stool as a result of the third accident, which occurred November 4, 2012.
On November 27, 2012, Dr. M. Howell e-mailed the Evaluator, contending the Evaluator had taken Howell’s comments to her out of context. It appears from the e mail that the Evaluator had concluded in her evaluation, based on something Howell had told her, that Wyatt was being injured more frequently than would be expected, Leslie was taking him to the doctor more frequently than would be expected, and Leslie might suffer from Munchausen syndrome by proxy. Howell protested that these allegations were unfounded and explained why, concluding: “If there is a pattern in the child’s atypical or high velocity injuries, that links neglectful behavior, to a specific caregiver, I
hope you are able to discover the cause, but it is not my opinion that Ms. O[.] is expecting secondary gain from her ...