NO. C071887

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

SUSAN C. FERRIS,

Appellant,

v.

DAVID M. FERRIS, Respondent.

Appeal From the Sacramento Superior Court Case No. 98FL05615

Hon. Matthew Gary, Judge Presiding

________________________________________

APPELLANT’S OPENING BRIEF ________________________________________

JAMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF MORRISON & FOERSTER LLP NORTHERN CALIFORNIA 425 Market Street 512 12th StreetSan Francisco, CA 94105-2482 Sacramento, CA 95814 Tel: 415.268.7000 Tel: 916.551.2150Fax: 415.268.7522 Fax: 916.551.2195JBrosnahan@mofo.com bkennedy@lsnc.net

Attorneys for Appellant

SUSAN C. FERRIS

TABLE OF CONTENTS Page

i

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 David’s

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 M’s

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 Attorney’s 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.  Susan’s Private Interests in the Right to the Care,

Custody, and Contact with Her Child Are “Compelling” and “Fundamental” ....................................... 18 

B.  The State Suspended Susan’s 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 Susan’s Case ........................................................................... 24 

C.  Susan Has a Protected Dignity Interest in Having Counsel Appointed to Adequately Present Her Case ........... 27 

TABLE OF CONTENTS (continued)

Page

ii

D.  The State’s 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 COURT’S $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 

TABLE OF AUTHORITIES

Page(s)

iii

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

TABLE OF AUTHORITIES (continued)

Page(s)

iv

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

TABLE OF AUTHORITIES (continued)

Page(s)

v

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

TABLE OF AUTHORITIES (continued)

Page(s)

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42 United States Code § 12102 ................................................................................................. 33 § 12132 ........................................................................................... 32, 36

OTHER AUTHORITIES

28 C.F.R. § 35.104 ................................................................................................ 35 § 35.160 ................................................................................................ 35

Cal. Rules of Court 8.104 ..................................................................................................... 13 8.403 ..................................................................................................... 19

Bezdak, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in the Legal Process (1992) 20 Hofstra L. Rev. 533 ......................................................................................... 21, 22

Judicial Council of California Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants (2004) ............................................................................. 28, 31

Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating? , Divorce Reform at the Crossroads (S. Sugarman edits. 1990) ................................................ 21

Seron, et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment (2001) 35 Law & Society Rev. 419 ............. 22

1

INTRODUCTION

This appeal challenges an order depriving Susan Ferris, an indigent

and disabled mother, of both custody and of all contact with her 14-year old

daughter, M, without affording the mother a right to court-appointed

counsel.

David Ferris, M’s father, who was represented by retained counsel,

persuaded the trial court to give him exclusive custody of M with the right

to unilaterally send her to an out-of-state boarding school and to enjoin the

mother from having any contact with the child. These orders were based on

the trial court’s suspicion that Susan helped M hide from her father after M

ran away from her father’s home. The trial court did not appoint counsel to

Susan despite her repeated requests for an attorney and her stated difficulty

in handling this case without one.

Under the due process clause of the California Constitution, the

mother had a right to be represented by counsel in the proceedings leading

to these orders. Because no lawyer was provided, and because the court

ordered that the mother have no contact with her child, the orders should be

reversed.

STATEMENT OF FACTS

A. Susan Is Disabled and Her Disability Hampers Her Focus and Emotional Stability in Stressful Situations

Susan suffers from Post-Traumatic Stress Syndrome (PTSD) related

to a rape in 2005 and a rock climbing accident in 2007. (ACT 3-11.) This

disability gives Susan “situational depression and anxiety, mostly related to

custody and court issues around [her] daughter.” (ACT 3.) It also results in

Susan having “mild generalized depression.” (ACT 4.) The Social

2

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 Susan’s separation from her daughter by permitting her father to

send her out of state. (See Part H., infra.)

B. Susan and M Shared a Close Relationship

The relationship between Susan and M had always been close. M

was born to Susan and her husband on September 19, 1997. (CT 64.)

Susan was married to M’s father, until they separated in 1998. (See CT

77.) The Sacramento Family Court entered a formal order dissolving the

marriage and ordering custody arrangements on May 5, 1999. (See CT

212.) Prior to November 4, 2011, M would stay with her mother part of the

week and with her father for the other part of the week. (CT 32, 62.) This

pre-existing custodial arrangement was approved by the court in March of

2011. (CT 62, 11.)

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.

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C. Susan and M had Serious Concerns About David’s Behavior

In late October of 2010, Susan became increasingly distressed by

complaints M voiced about the living situation with her father. (CT 31-34,

41.) M voiced two main complaints: she was upset by the bedroom and

sleeping situation at her father’s house and scared by his angry outbursts.

(CT 16-18.) These included “throwing a table against a wall out of

frustration after attempting to tutor her in math.” (CT 64.) At the time, M

told her mother that she did “not feel safe [or] feel comfertable [sic] with

[her] dad.” (CT 16.)

M’s concerns alarmed Susan because of her personal familiarity with

the violence that could accompany David’s angry outbursts. (See, e.g., CT

64-65, 70, 72-74.) In the past, David once hit Susan and pushed her onto

the floor, tearing the phone out the wall when Susan attempted to call the

police. (CT 72-74.) In another instance, David’s elderly mother had

sought an emergency protective order against him after he “shook her and

hit her in the arm [with] a tin can.” (CT 64, 70.)

Susan was also concerned because M’s 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.)

D. The Court Deprived Susan of Custody of M in Hearings Where Susan Was Unrepresented

Distressed, and scared for her daughter, Susan sought to obtain

primary physical custody. (CT 5.) She wanted to continue to share

parenting time and allow David’s visitation while these issues were worked

out. (CT 5.) In accordance with M’s preference, Susan first attempted to

4

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.)

These custody issues were to be determined by the family court,

which had continuing jurisdiction over child custody issues after the

marriage was formally dissolved and custody was established in 1999. (See

CT 212 [judgment of dissolution was entered on May 5, 1999].) Susan

then did her best to state the issues to the court, without the assistance of an

attorney. (CT 4.) David had the assistance of an attorney throughout the

proceedings. (See, e.g., CT 9, 111-113, 117, 212.) This disparity proved to

be determinative.

On November 4, 2011 the court, instead of granting the custodial

arrangements Susan requested, issued temporary orders granting sole

physical custody and control of M to her father, and required that visitation

by the mother be supervised. (CT 23.) On November 28, 2011 the court

extended these temporary orders until January 9, 2012. (CT 81.) The

lower court made these determinations in a hearing in which it did not seek

or allow M to testify. (RT 12:19-20.) She was never allowed to explain

her discomfort with her father. (Ibid.) The lower court stated during a

December 2011 hearing: “In hearings past Ms. Ferris has pled for me to

talk to [M]. I’ve been rather reticent.” (Ibid.)

Shortly thereafter, M ran away from her father’s custody, sending a

letter to her father again complaining about the sleeping situation and his

angry outbursts. (CT 91.) The letter stated, “Dad, I am getting a

5

restraining order against you . . . I’m 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 didn’t want this anymore.” (RT

83:3-8.)

E. The Trial Court Accused Susan of Assisting in M’s Disappearance and Deprived Susan of Her Parental Rights Without Appointing Counsel for Susan

David and his attorney brought Susan into court, accusing her of

aiding in M’s 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 don’t

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 M’s

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.)

Without an attorney to aid Susan, opposing counsel was able to

frame the evidence to Susan’s detriment and make the hearing one-sided.

For instance, the court asked if either parent believed that M was with

someone they knew; Susan said she did not believe M was with someone

Susan knew, but David brought up the “possibility” that M was staying

with his brother. (RT 77:12-19.) Instead of pursuing the matter with

David, the court pursued the matter with Susan, questioning her as to

whether M was with David’s brother. (RT 77:20-78:2.) The court declined

to ask even one follow-up question to David as to why he thought M might

6

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 court’s 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.)

In another instance, David’s attorney introduced evidence that

Susan had visited websites, directly after the court’s November 5th order,

concerning “legal kidnapping” and argued that these showed she

contemplated having her daughter kidnapped. (RT 78:18-24, 80:17-81:3.)

Susan explained that the term “legal kidnapping” was actually a reference

to circumstances where the legal system had taken away custody from a

parent, as the trial court had taken away custody from Susan in a trial she

thought was unfair due to her lack of an attorney. (RT 80:11-16, 81:4-22.)

The court ignored Susan’s 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 that’s 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

court’s “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

7

her daughter, but decided it was not “certain beyond a reasonable doubt”

that Susan could comply with the court’s 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

I’d 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.)

F. The Court Allowed David to Send M to an Out-of-State Lock-Down Facility

The court extended the temporary orders giving sole custody to

David and depriving Susan of contact with her daughter on January 9,

2012. (CT 143.) M returned to Sacramento and began attending her

regular middle school in January. (CT 174, 205.) On March 23, 2012,

without consulting M, David arranged for personnel from a “boarding”

facility to go to the middle school she attended and take her directly to the

facility in Utah. (CT 206.) David’s attorney acknowledged that the

“boarding” facility was “a treatment facility where the child is locked up

in.” (RT 157:24-26.) The court even stated that the treatment was being

used to “deprogram the child.” (RT 164:4.) On April 4, 2012, Susan filed

a motion for M to be returned to California and for appointment of counsel

for M. (CT 172-74.) The hearing on this motion was set for May 9, 2012.

8

(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. Susan’s sole income was the $1256 per month she

received in social security for her disability. (CT 201.) The Court then

added to Susan’s inability to afford an attorney on April 18, 2012. (Ibid.)

Following the court’s 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

Again without the benefit of an attorney, Susan then went to the

Superior Court to request that the court appoint M an attorney and order

that David take her out of the treatment facility and return her to California.

(RT 168:1-5.) Susan again stated that she was having difficulty with the

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.)

9

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 court’s ruling, David’s 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, “Isn’t 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 Susan’s motion to prevent her father

from sending M out of state and denied Susan’s motion to have counsel

appointed for M. (RT 173:12-16; CT 212.)

David’s attorney then asked the court to swear Susan in, and Susan

was sworn. (RT 174:2-7.) David’s attorney questioned Susan about M’s

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 brother—as

David had earlier acknowledged was “a possibility.” (RT 77:18-19.)

G. The Court Orders Susan to Pay Attorney’s Fees for Filing the Motion to Prevent David from Sending M Out of State

David’s counsel sought attorney’s 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.)

10

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 M’s 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.)

At the May 9, 2012 hearing, the trial court imposed $2,500 in

attorney’s fees against Susan under Family Code Section 271. (RT 179:3-

6; CT 212.) The sanction is to be paid at $25 per month with the entire

amount becoming due immediately if the monthly payment is 10 days late.

(CT 212.)

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

11

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 court’s 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 Susan’s

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 Susan’s income was $500 per month less

than her expenses. (RT 159:12-15.) The trial court acknowledged that the

child support order “doesn’t leave her [Susan] much to live on.” (RT

164:10-11.)

H. Susan Had Difficulty Pursuing and Arguing Her Case Without the Assistance of Counsel

Without the assistance of an attorney, Susan found the proceedings

to be difficult and did not have a full and fair opportunity to present the

issues to the court. (RT 81:19-21; 172:14-21.) Susan’s disability and

12

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

court’s focus, and undermined Susan’s advocacy and presentation of her

own testimony and evidence.

STANDARD OF REVIEW

Because the failure to appoint counsel for Susan before depriving

her of contact with M undermined the fundamental fairness of the hearing

in violation of the due process clause of the California Constitution, the

trial court’s order is reversible per se. When a court infringes upon a right

which “calls into question the very fairness of the trial or hearing itself” the

“error[] in civil cases remains reversible per se.” (Biscaro v. Stern (2010)

181 Cal.App.4th 702, 704 [holding that a case where “meaningful

assistance” was not provided to a party with a mental disability, the denial

of this assistance “is [a] structural error infecting a legal proceeding’s

reliability”] (Biscaro); see also Adoption of Baby Girl B. (1999) 74

Cal.App.4th 43, 55.)

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

13

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].)

This Court also reviews de novo whether California disability law

required the court to accommodate Susan’s disability by appointing counsel

to assist her in the proceedings below. It is undisputed that Susan is

disabled and that the court made no effort to accommodate this disability.

The issue of what California disability law requires a court to do to

accommodate a mental disability presents a question of statutory

interpretation that is reviewed de novo. (Cuiellette v. City of Los Angeles

(2011) 194 Cal.App.4th 757, 765 [determining how employment

discrimination law applied to undisputed facts reviewed de novo]; Turner v.

Association of American Medical Colleges (2008) 167 Cal.App.4th 1401,

1407 [determining that disabled person’s accommodation request should be

reviewed de novo where relevant facts are undisputed].)

The lower court’s award of attorney’s fees of $2,500 as a sanction

against Susan is reviewed for abuse of discretion. (Parker v. Harbert

(2012) 212 Cal.App.4th 1172, 1177.) Factual findings made in connection

with a sanction are reviewed under the substantial evidence standard.

(Ibid.)

STATEMENT OF APPEALABILITY

This appeal is from the May 9, 2012 order of the Superior Court of

Sacramento County denying Appellant’s 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.)

14

The May 9, 2012 order was a final determination of David’s 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.)

The order imposing sanctions on Susan is also appealable because it

“is not preliminary to some future judgment from which the order might be

appealed.” (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1524-

1525, review den. (2005) [denial of a party’s request to impose post-

judgment sanctions appealable under California Code of Civil Procedure

Section 904.1(a)(2)].)

LEGAL ARGUMENT

California courts have recognized that the right to the custody,

contact, and care for one’s child is a liberty interest protected by due

process. (Salas v. Cortez (1979) 24 Cal.3d 22 (Salas); In re Jay R. (1983)

150 Cal.App.3d 251, 259.) The state cannot deprive Susan of this

important liberty interest without due process.

Here, the trial court failed to provide the constitutionally required

due process because it failed to provide counsel to Susan in proceedings

which deprived her of her parental rights and significantly prolonged her

separation from her daughter. Susan respectfully requests this Court to

order the trial court to appoint her counsel. Susan also asks this court to

15

reverse the superior court’s sanction of $2,500 for failing to consider that

this sanction would impose an undue financial burden on her.

I. THE STATE DEPRIVED SUSAN OF ALL CUSTODY AND CONTACT WITH HER DAUGHTER WITHOUT DUE PROCESS OF LAW

The California Constitution provides that “a person may not be

deprived of life, liberty, or property without due process of law.” (Cal.

Const. art. I, § 7(a).) The guarantee of due process applies when the state

deprives a citizen of a significant liberty interest. (People v. Allen (2008)

44 Cal.4th 843, 862.) California courts have stated that “due process is

implicated whenever there is “a substantial possibility of the loss of custody

or of prolonged separation from a child.” (In re Emilye A. (1992) 9

Cal.App.4th 1695, 1707 (Emilye A.) [internal citations omitted].) Due

process is implicated here. The State deprived Susan of custody and

contact with her daughter in November and December of 2011. On May 9,

the superior court relied on the orders depriving Susan of custody and

ordering that she have no contact with M to justify an order creating a

prolonged separation between mother and daughter by allowing David to

send M to an out-of-state facility where she was “locked up.” (RT 157:26,

173:12-16; CT 212.)

Where the guarantee of due process applies, California courts apply

a four-part balancing test to determine what process is due. (Allen, supra,

44 Cal.4th at p. 845.) The four factors are:

(1) the private interest that will be affected by the official action,

(2) the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards,

(3) the dignity interest in informing individuals of the nature,

grounds and consequences of the action and in enabling them to

16

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

Applying this test, California courts have found a constitutional right

to appointed counsel in civil proceedings where a parent’s fundamental

liberty interest in the companionship, care, custody, and control of his or

3 The dignity interest (also often referred to as the “dignitary

interest”) is a person’s right to “‘meaningfully participate’” in a proceeding which could result in the loss of a protected liberty interest. (Moore v. Super. Ct. (2010) 50 Cal.4th 802, 819.) In People v. Ramirez (1979) 25 Cal.3d 260, 268, the Court first articulated this interest, stating that “when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in a fair and unprejudiced decision-making and in being treated with respect and dignity.”

4 The due process clause of the California Constitution is more protective than the due process clause of the United States Constitution. Under federal law, a court weighs three factors: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions” and balances the “net weight” of these factors “against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” (Lassiter v. Dept. of Social Services (1981) 452 U.S. 18, 31 (Lassiter).) Under this test, an indigent parent may have a right to appointed counsel where “the parent’s interests were at their strongest, the State’s interest were at their weakest, and the risks of error at their peak.” (Lassiter, supra, 452 U.S. at p. 31.) California law is more protective in two critical ways. First, under the California Constitution, a fourth factor must be considered: the litigant’s dignity interest in meaningfully participating in the proceedings. (See, e.g., In re Malinda S., supra, 51 Cal.3d at p. 383.) Second, California courts “do not presume that appointed counsel is required only where physical liberty is at stake.” (In re Jay R., supra, 150 Cal.App.3d at p. 262.)

17

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.)

Other California courts have likewise recognized a constitutional

right to counsel in civil proceedings that implicated the fundamental liberty

interest in custody and companionship between parent and child. (In re Jay

R., supra, 150 Cal.App.3d at p. 260 [“due process requires appointment of

counsel for indigent parents accused of neglect in stepparent adoption

proceedings”]; County of Santa Clara v. Super. Ct. (1992) 2 Cal.App.4th

1686 [determining that defendant had a constitutional right to appointed

counsel in his child custody contempt hearing].)6

Here, the balance of the four factors weighs heavily in favor of

finding that Susan was entitled to have counsel appointed to represent her

before the trial court issued orders that deprived her of all contact with her

daughter and caused a prolonged separation from her daughter.

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 state’s 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”].)

18

A. Susan’s Private Interests in the Right to the Care, Custody, and Contact with Her Child Are “Compelling” and “Fundamental”

The private interests in the important relationship between parent

and child weigh heavily in favor of requiring that counsel be appointed for

an indigent and disabled parent before the state may deprive the parent of

contact with his or her children. California courts have recognized a

parent’s interest in the companionship, care, custody, and management of

his or her children as “compelling,” “fundamental,” and “‘among the most

basic of civil rights ….’” (Salas, supra, 24 Cal.3d at p. 28 [citations

omitted]; In re Jay R., supra, 150 Cal.App.3d at p. 259 citing In re B. G.

(1974) 11 Cal.3d 679, 688-689; In re Sade, supra, 13 Cal.4th at p. , 989.)

Courts have recognized that the “parent’s interest in maintaining a normal

parent/child relationship is an extremely important interest” and a

proceeding “which seriously infringes on the parent’s ability to parent a

child for a substantial period of time . . . seriously implicates the same

important interest.” (Emilye A., supra, 9 Cal.App.4th at p. 1708.) The trial

court’s order that Susan have no contact with her daughter and its order

permitting M to be sent out of state resulted in a prolonged separation

between mother and daughter. A parent’s interest in avoiding this kind of

separation from his or her child is one of the strongest possible private

interests. There is no way for a parent to turn back the clock and regain the

time and experiences that are lost as a result of such state-ordered

separation of parent and child.

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

19

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 child’s family ties.” (In

re Sade, supra, 13 Cal.4th at p. 959, fn. 1 [italics added, internal quotations

omitted].)

Appointing counsel for indigent parents whose right to contact their

child is at stake protects the same interests in preserving family ties that has

motivated the Supreme Court of California and the California legislature

find that parents have a right to counsel in termination and dependency

proceedings. The narrow class of indigent parents who are in a custody

proceeding and face a “prolonged separation” from, and loss of contact

with, their child also have a right to counsel in these proceedings. (See

Emilye A., supra, 9 Cal.App.4th at p. 1707.) When an indigent parent is in

danger or losing the right to have any contact with her child, a fundamental

private interest is implicated regardless of whether the proceeding is termed

a dependency, termination, or custody proceeding.

Susan’s private interests also included her interest in maintaining her

personal liberty. Courts have been particularly likely to find that a parent’s

due process rights to counsel have been infringed where, in addition to

facing the “emotionally devastating potential loss of all of, or significant

aspects of, their relationship with their children,” they face “potential

20

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.

B. The State Suspended Susan’s Parental Rights in Proceedings Which Had a High Risk of Error

The second factor in determining what process is due—“the risk of

an erroneous deprivation” and “the probable value” of additional procedural

safeguards—also weighs heavily in favor of appointing counsel before the

state may deprive a parent of contact with her child. Failing to appoint

counsel to an indigent and mentally disabled parent substantially increases

the risk of an erroneous determination. When the consequences of an

erroneous determination could include a no-contact order that severs an

existing parental relationship, a court should appoint counsel to mitigate

this risk.

1. Child Custody Proceedings Have a High Risk of Error When One Party is Unrepresented

The risk of error is high in child custody proceedings because these

proceedings are among the most difficult in the law. The difficulties stem

not only from the procedural complexities inherent in any adversarial

litigation proceeding, but also the intense, emotionally charged backdrop

against which child custody decisions are ordinarily made, as well as the

amorphous nature of the legal standards that govern in family law disputes.

(Emilye A, supra, 9 Cal.App.4th at p. 1709 [stating that “few lay people are

equipped to respond to the legal complexity of [custody] proceedings,”

21

especially when dealing with the “emotionally devastating potential loss

of . . . their relationship with their children”].)

The lack of an attorney impacts a litigant’s pursuit of his or her case

before arriving in a courtroom. Identifying and delineating the substantive

issues in a child custody trial is only the first challenge that self-represented

litigants face. The range of permissible factors in hearing to determine the

best interests of a child is practically infinite, and can require the

introduction of expert testimony, affidavits, school reports, or criminal

records relating to substance abuse or domestic violence. The procedural

rules for introducing this evidence in family court are complex and often

inaccessible to laymen. In Elkins v. Super. Ct. (2007) 41 Cal.4th 1337,

1345, the California Supreme Court commented on how difficult, if not

impossible, it is for self-represented litigants to learn and understand these

rules. Moreover, unrepresented litigants often fail to make sound strategic

decisions in framing, timing, and pursuing their cases before any hearing.

These are failures which, by their nature, do not make their way into the

court record.

Studies have shown that the assistance of an attorney makes a

significant difference in the outcome of child custody proceedings

especially when the opposing parent is represented by counsel. Professor

Robert H. Mnookin and other distinguished scholars published a study

showing that, unsurprisingly, there was clear correlation between

representation and the likelihood of a particular custody outcome:

“[m]other physical custody was more common when only the woman had a

lawyer, father custody when only the man had a lawyer, and joint custody

when both were legally represented.” (Mnookin, Maccoby, Albiston &

Depner, What Custodial Arrangements are Parents Negotiating?, Divorce

22

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 parent’s 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 county’s

position that the purpose of the adversarial proceeding, i.e., an accurate and

just decision, would not be obtainable”].)

Even apart from the emotional impact of participating in proceedings

which threaten fundamental parental rights, few parents are capable of

performing the essential advocacy functions such a hearing requires. (In re

Jay R., supra, 150 Cal.App.3d at p. 263 [“An uneducated indigent [parent]

can easily become overwhelmed by . . . a [dependency] proceeding [that

involves shifting legal standards and evidentiary issues] without the

assistance of counsel”].) In light of the need to apply legal standards within

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 City’s Housing Court: Results of a Randomized Experiment (2001) 35 Law & Society Rev. 419.)

23

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 rights—including the right to have any contact

with one’s 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”].)

2. The Proceedings at Issue Were Complex, Emotionally Charged, and Carried a High Risk of Error

The proceedings in which the court ordered Susan to have no contact

with M and allowed David to send M out of state were emotionally charged

and complex. Concerned about her daughter’s sleeping arrangements and

David’s angry outbursts, Susan initiated the hearing in November to gain

primary custody, because, as David admitted, “[M] indicated to [him] that

she really desired a 50/50 custody arrangement.” (CT 25.) No transcript

was made of the November hearing, but the court later stated that Susan

had “pled for [the court] to talk to [M],” but the court decided against

inviting in testimony from the child. (RT 12:19-22.) At a hearing initiated

by Susan out of concern for her daughter, the court instead terminated what

custodial rights Susan had. (CT 23.) M then ran away from her father.

(CT 91.) This put Susan in a stressful situation: she was accused by

opposing counsel and by the court of assisting in the disappearance of her

24

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-

husband’s custody of their daughter endangered M’s 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.

Overwhelmed, under stress, and under the effects of her mental

disability, Susan was unable to effectively argue her case. (See, e.g., RT

105:25-106:4, 127:10-23, 128:20-129:12, 131:6-16, 132:27-133:3, 133:26-

28.) Counsel for David was able to frame the hearing and the evidence to

Susan’s detriment. (RT 77:12-78:2, 78:18-23, 80:18-81:3.) After M had

returned, the court allowed counsel for David to put Susan under oath to

further question her. (RT 174:2-22.) Facing an experienced attorney under

these circumstances, Susan was unable to effectively present her side of the

case. The result was a one-sided hearing and a one-sided decision: no

custody or contact with her child, no parental rights in determining whether

M should be sent out of state. (CT 116, 117; RT 162:18-163:1, 164:4.)

3. An Attorney Would Have More Effectively Prepared, Investigated, and Argued Susan’s Case

An attorney would have more effectively defended Susan’s right to

maintain custody and contact with her daughter. First, a good attorney

would have established what Susan’s objectives and motivations were, and

then tailored a litigation strategy to achieve those objectives.

25

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 Susan’s 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.)

An attorney also may have been able to negotiate with David’s

counsel, and come to an agreement. Or, if the two parties could not come

to an amicable agreement, the attorney could have written a forceful brief in

favor of having the court appoint counsel for M, as well as arguing that

pulling M from school and sending her to a lock-down facility was not in

M’s best-interest. Such a motion would have been bolstered by the

applicable statutory law, caselaw, and admissible facts, none of which were

presented by Susan on May 9. (RT 166:1-174:22.)

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].)

26

The hearings in November and December of 2011 in which the court

severed Susan’s custody and contact with M would also have been

markedly different with counsel. First, counsel would have established

what Susan’s overall objectives were before Susan sought primary custody,

and tailored Susan’s 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 M’s best interests. Appointed counsel would have been able to

introduce M’s letter, M’s text messages, and call witnesses to establish that

it was in M’s 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 M’s 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.

The appointment of an attorney to represent Susan would have

avoided friction with the judge. An attorney may have counseled her

against attempting to disqualify the judge. (CT 82-85.) Susan’s decision to

attempt to disqualify the judge was unsound: foremost because it was an

unwelcome distraction from the merits of her case, and second because it

was procedurally and substantively defective. (RT 133:17-134:9; CT 152-

155.) An attorney in this case would have been an effective advocate for

27

Susan and would have saved hours of the court’s time by better preparing,

investigating, and arguing the case.

Under these circumstances, the probable value of appointed counsel

in mitigating the risk that the trial court erroneously deprived Susan of her

parental rights and severed her relationship with M weighs in favor of

appointing her counsel. (In re Bryce C. (1995) 12 Cal.4th 226, 234

[“Because of the fundamental importance to the parent and society of an

accurate determination whether to terminate parental rights, counsel should

be appointed whenever the appearance of counsel may reasonably affect the

ultimate decision”].)

C. Susan Has a Protected Dignity Interest in Having Counsel Appointed to Adequately Present Her 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

28

permit family law litigants to tell their story.” (Id. at pp. 1367-1368.)9

The California Supreme Court has acknowledged that counsel can

serve as an effective means of guaranteeing an individual’s dignity interest

under the due process clause of the California Constitution. (People v.

Allen, supra, 44 Cal.4th at p. 868.) Pro per litigants in family law courts

struggle to meaningfully participate in the proceedings due to lack of

education, unfamiliarity with legal rules and procedures, and overburdened

family court calendars. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367;

Judicial Council of California Task Force on Self-Represented Litigants,

Statewide Action Plan for Serving Self-Represented Litigants, at pp. 10-11

(Feb. 2004), available at www.courtinfo.ca.gov/reference/documents/

selfreplitsrept.pdf [“public trust and confidence in the judicial process is

undermined when justice is delayed or appears to be completely

inaccessible to litigants who do not have access to legal help.”).)

Susan’s dignity interest in having her story heard can only be

protected by appointed counsel, especially given her mental disabilities that

“restrict [her] in-court comprehension and communication skills.” (ACT

1.) When a disabled and indigent litigant cannot be provided meaningful

access to the courts without counsel, due process requires the appointment

of counsel. (See Payne v. Super. Ct. (1976) 17 Cal.3d. 908, 924 [holding

that denial of appointed counsel to an indigent prisoner in a civil case was

impermissible under the California Constitution where “no other relief will

preserve his right of access to the courts”].)

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].)

29

D. The State’s Interests Also Weigh in Favor of Appointing Counsel for Susan

The final factor in determining what process is due—“the

governmental interest” in the benefits and burdens of additional procedural

safeguards—also weighs in favor of finding that an indigent and disabled

parent has a right to counsel when her right to contact or have custody of

her child is at stake.

The government has a compelling interest making sure there is an

accurate determination of parental rights. That is a primary reason family

courts exist. (In re Sade, supra, 13 Cal.4th at p. 959, fn. 1.) When the

California Supreme Court granted a right to counsel to an indigent man

defending against allegations of paternity, it observed that “[a]ppointment

of counsel for indigent defendants will make the fact-finding process in

paternity cases more accurate, thereby furthering the state’s legitimate

interests in securing support for dependent children.” (Salas, supra, 24

Cal.3d at p. 33.) The state’s interest in the just and accurate determination

of parental rights has been called “important and even compelling.” (In re

Sade, supra, 13 Cal.4th at p. 989.)10

Protecting the state’s interest in having an accurate result depends on

an adversarial system that is not overwhelmingly tilted in favor of one

litigant. (See Part I.B, supra.) Here, the court made decisions about what

the child’s best interests were in a hearing where the father and his lawyer

were only countered by a disabled mother struggling to represent herself

without counsel. (CT 11-113, 116, 117, 209, 212.) As a result of these

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.)

30

one-sided proceedings, the court made dubious decisions regarding M’s

best interests. The court decided that it was in M’s 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.).

The state also has a special and particularly compelling interest in

protecting the health and welfare of children. (In re Sade, supra, 13 Cal.4th

at p. 989 [characterizing this interest as “urgent”]; American Academy of

Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342.) Where only one parent

has counsel, it is less likely that a court will come to an accurate conclusion

regarding the child’s best interests. “Appointment of counsel [to a parent

who lacks counsel] will not only advance substantial state interests, it

should serve the child’s interest as well.” (Salas, supra, 24 Cal. 3d 22 at p.

33.) M had a close relationship with her mother, and, like most children,

missed her when she was unable to see her. (CT 55.) Nevertheless,

without counsel Susan was unable to convince the court to hear testimony

from M, who was fourteen at the time, before determining whether Susan

should have custody of M. (RT 12:19-20.)

The state’s interests in the welfare of children generally align with a

parent’s interest in retaining the companionship, care, custody, and

management of the child. California statutory law clearly demonstrates a

strong state interest in the continued relationship between parent and child.

For instance, California Welfare & Institutions Code Section 16000 notes

that it “is the intent of the legislature to preserve and strengthen a child’s

family ties whenever possible . . . ” This preference is why, in custody

proceedings, the number one “preference according to the best interest of

the child” is to grant custody to “both parents jointly, or to either parent.”

(Cal. Fam. Code § 3040(a).) Because “continuing contact” with both

31

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.)

While the state’s interests in a just and accurate determination of

parental rights and in the welfare of children are “compelling” and support

appointing counsel for an indigent and disabled parent facing potential

separation for his or her child, the “state’s interest in denying counsel to

[indigent parents] is largely financial.” (Salas, supra, 24 Cal.3d at p. 33.)

Even with regard to that financial interest, the appointment of counsel “can

create savings in court time otherwise spent repeatedly processing

inaccurate or incomplete paperwork, calendaring unnecessary hearings, and

dealing with repeated requests for legal advice made to judicial officers and

other court staff.” (Judicial Council of California Task Force on Self-

Represented Litigants, Statewide Action Plan for Serving Self-Represented

Litigants, at p. 10.) Appointing counsel for the narrow class of indigent

parents who are in a custody proceeding and face a “prolonged separation”

from, and loss of contact with their child would be an insubstantial

financial burden on the state, and does not outweigh the other important

interests which weigh towards appointing counsel. (See Payne v. Super.

Ct., supra, 17 Cal.3d. at p. 920 [rejecting argument that providing counsel

would “impose a heavy burden on the public fisc” and questioning “how

substantially state costs would be increased” by providing counsel to a

narrow class of unrepresented civil litigants].)

II. FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GUARANTEE SUSAN THE RIGHT TO COUNSEL IN THIS CASE

California law guarantees full and equal access to the benefits of

state services. The family court is a state service and California is required

to provide disabled litigants the means to meaningfully participate in family

32

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].)

California disability law requires that state-funded programs must

not discriminate on the basis of a disability and largely incorporates the

standards set forth under the Americans with Disabilities Act (“ADA”).

(Gov. Code § 11135 et seq.) Under California law, “[n]o person in the

State of California shall, on the basis of . . . disability, be unlawfully denied

full and equal access to the benefits of” state services, including court

hearings. (Gov. Code § 11135(a).) Access to these services must comply

with both Section 202 of the ADA (including related federal regulations)

and with California’s disability laws; whichever law provides “stronger

protections and prohibitions” governs. (Gov. Code § 11135(b).)

A public program or service violates the ADA (and therefore also

California law) if the litigant can show that:

(1) she is a “qualified individual with a disability”;

(2) she “was either excluded from participation in or denied the

benefits of a public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity”; and

(3) “such exclusion, denial of benefits, or discrimination was by

reason of [her] disability.”

(42 U.S.C. § 12132.)

A. Susan Has a Qualifying Mental Disability

Under the ADA and California law, a person with a mental disability

impacting her ability to think clearly is disabled. Under the ADA a

33

“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.

34

B. Susan Made a Reasonable Request for Accommodation

A person with a qualifying disability is not required to make an

explicit or formal request for accommodation. While a disabled person

must request some accommodation, the litigant is not required to speak any

“magic words.” (Scotch v. Art Institute of California (2009) 173

Cal.App.4th 986, 1013; Prillman v. United Air Lines, Inc. (1997) 53

Cal.App.4th 935, 934) Where the person initiating the request for

accommodation is mentally disabled, particular leeway is given regarding

the form of a request for accommodation. (Bultemeyer v. Ft. Wayne

Community Schools (7th Cir. 1996) 100 F.3d 1281, 1285 [employee

initiated a request for accommodation when employer was aware of his

mental disability and he stated that work at his position “would be too

stressful”].)

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 Susan’s 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.

C. The Court Was Obligated to Provide Auxiliary Aids and Services

Because Susan has a mental disability that prevented her from

having meaningful access to court services without counsel, the court was

obligated to provide appointed counsel as an accommodation, as Susan had

requested. When considering a “request of accommodation,” a public

entity must consider available options and furnish “appropriate auxiliary

35

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 individual’s 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.)

Providing legal representation is a reasonable accommodation for

persons with mental disabilities who lack attorneys. In Franco-Gonzalez,

supra, 2013 WL 3674492 at p. *6, the court explained that mentally

disabled litigants “seek only the ability to meaningfully participate in the

. . . court process, including the rights to examine the evidence against the

[them], to present evidence on [their] own behalf, and to cross-examine

witnesses. . . . [The litigants] ability to exercise these rights is hindered by

their mental incompetency, and the provision of competent representation

able to navigate the proceedings is the only means by which they may

invoke those rights.” (Ibid. [internal quotations and citations omitted,

italics added].) The court should have appointed Susan an attorney so that

she could meaningfully participate in proceedings implicating fundamental

rights to continued contact with her daughter.

D. Susan Was Excluded From Meaningfully Participating in Her Hearing as Result of Her Disability

Susan’s disability noticeably impeded her ability to meaningfully

participate at her hearing. (Henrietta D. v. Bloomberg (2nd Cir. 2003) 331

36

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.) Susan’s mental disability prevented her from focusing on

the many the accusations leveled at her by the father’s 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 Court’s 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].)

III. THE TRIAL COURT’S $2,500 SANCTION WAS AN ABUSE OF DISCRETION

A. Failure to Consider Whether a $2,500 Sanction Would Impose an Undue Burden Was an Abuse of Discretion

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.

37

B. Imposing a Sanction Which Would Impose an Undue Burden Was an Abuse of Discretion

There was substantial evidence that sanctioning Susan would cause

her to suffer an undue financial burden. The trial court had previously

ordered Susan to pay $920 of her $1256 monthly income as child support,

leaving her with only $336 per month to live on. (CT 201, 202.) The April

18, 2012 order was also retroactive and had created a $1,700 child support

debt immediately owed by Susan. (CT 201.) On April 18, the court stated

“I realize that [the $920 per month child support order] doesn’t leave her

[Susan] much to live on.” (RT 164:10-11.) However, the trial court did not

consider these facts when imposing the $2,500 sanction.

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 Susan’s 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 Susan’s 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 attorney’s fees award of $200

(approximately $650 in 2013 dollars) was an abuse of discretion where

imposed on a destitute party].) The court’s imposition of a sanction which

would hang over Susan for over eight years was an abuse of discretion.

38

C. The Trial Court Had No Reasonable Justification to Sanction Susan

The trial court imposed a $2,500 sanction on Susan for failing to

drop her motion to appoint minor’s counsel and restrain David from

moving M out of state. (CT 212; RT 174:26-175:23.) Family Code

Section 271 authorizes attorney’s fees sanctions only for conduct that

increases litigation costs by flouting the policy of encouraging settlement

and cooperation. (Parker v. Harbert, supra, 212 Cal.App.4th at p. 1176.)

The lower court did not state its basis for the sanction. (See RT 174:26-

179:6.) However, opposing counsel had moved for sanction for filing

frivolous motions that created litigation. (RT 175:6-16.) The $2,500

sanction was the amount opposing counsel stated was incurred for fees for

the motion to return M to California. (RT 175:19-23.) For several reasons,

imposing this sanction was an abuse of discretion.

Susan’s 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 Susan’s 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

39

178:19-24.) However, the trial court’s characterization misstates Susan’s

answers to the court’s 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

court’s question, Susan directly answered it. The court’s 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 Susan’s

claim based solely upon her body language when the court could have

directly asked the court clerk to verify or contradict Susan’s statement.

Imposing sanctions here constituted an abuse of discretion.

It was also an abuse of discretion to sanction Susan for failing to

drop a hearing she attempted to consolidate. Susan filed an application to

consolidate the April 18 hearing on David’s child support modification

motion with the May 9 hearing on the motion to return M to California.

(CT 193-196.) Susan’s attempt to save litigation costs by having motions

heard at one court appearance instead of two, rather than increase costs,

was rejected by the trial court. (CT 200.) The April 12, 2012 motion is

40

marked “No Hearing.” (CT 193.) Opposing counsel’s choice to appear

anyway should not be held against Susan.

Because the trial court’s findings lacked reasonable justification,

because Susan attempted to decrease litigation costs by asking to combine

or cancel hearings, and because the sanction imposed an undue financial

burden, a reasonable judge would not have imposed the sanction against

her. Imposing this sanction was therefore an abuse of discretion and the

order regarding sanctions should be reversed.

CONCLUSION

Under the California Constitution’s due process clause, Susan should

not have been deprived her of the fundamental right to the care, custody,

and contact with her child without first being appointed counsel to assist

her in the proceedings.

The proceedings leading to the May 9, 2012 order resulted in

Susan’s loss of custody of M, an order not to contact M, and an order

permitting David to send M out of state. Because the trial court failed to

appoint counsel before depriving Susan of her fundamental rights, the May

9, 2012 order should be reversed and the trial court should be instructed to

appoint counsel to assist Susan in further proceedings related to contact

with and custody of her daughter. Alternatively, this order should be

reversed because the court failed to appoint Susan an attorney as a

reasonable accommodation for her disability.

The order imposing $2,500 in attorney’s fees should be reversed

because the court did not consider that this sanction would impose an undue

financial burden on Susan and because the court lacked reasonable

justification for imposing this sanction.

41

Appellant respectfully requests this Court reverse the May 9, 2012

order and remand for further proceedings after counsel is appointed for

Susan.

Dated: September 16, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN

Attorney for Appellant SUSAN C. FERRIS

42

CERTIFICATE OF COMPLIANCE

As required by rule 8.204(c)(1) of the California Rules of Court and

in reliance on the word count of the computer program used to prepare this

brief, counsel certifies that it was produced using 13 point Roman type and

consists of 12,183 words, including footnotes. Dated: September 16, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN

Attorney for Appellant SUSAN C. FERRIS