Kemper v. Cnty. of San Diego

242 Cal.App.4th 1075

196 Cal.Rptr.3d 35

Johnneisha KEMPER, Plaintiff and Appellant,

v.COUNTY OF SAN DIEGO et al., Defendants and Respondents.

D066289

Court of Appeal, Fourth District, Division 1, California.

Filed December 4, 2015

As Modified on Denial of Rehearing December 28, 2015

Law Offices of Shawn A. McMillan and Shawn A. McMillan, Stephen D. Daner, Samuel H. Park, and Dennis B. Atchley, for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel, Ricky R. Sanchez and Stephanie Karnavas, Deputy County Counsel, for Defendants and Respondents.

HALLER, J.

Five years ago, this court affirmed a judgment terminating Johnneisha Kemper's parental rights to her daughter, rejecting Kemper's contention that claimed ineffective assistance by her appointed juvenile dependency attorneys caused the termination of her parental rights.¹ Kemper then brought a legal malpractice action against the same appointed juvenile dependency attorneys (Thomas Kisiel and Tracy De Soto), their supervising attorney (Robert Gulemi), and the County of San Diego (County).² She alleged defendants' legal representation breached the applicable standard of care and caused the termination of her parental rights. Defendants moved for summary judgment based on the collateral estoppel doctrine. The court granted the motion and entered judgment in defendants' favor.

Kemper appeals. We affirm. Causation is an essential element of a legal malpractice claim, and Kemper is barred by the collateral estoppel doctrine from relitigating the issue of whether her juvenile dependency attorneys caused the termination of her parental rights. We decline Kemper's request that we create a new exception to the collateral estoppel rule based on an analogy to the writ of habeas corpus procedure applicable in juvenile dependency cases.

FACTUAL AND PROCEDURAL SUMMARY

I. Summary of Dependency Proceedings

In May 2008, 16–year–old Kemper gave birth to a daughter, NF. When the baby was less than two weeks old, San Diego police officers removed the child from Kemper's care. Four days later, the San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivision (g), alleging the infant was at substantial risk of harm because she had been abandoned by the mother; the mother's whereabouts were unknown; and reasonable efforts to find the parents had been unsuccessful.³ The next day, the trial court made a prima facie finding on the petition and detained the child in out-of-home care.

About three weeks later, on June 18, the court held a jurisdiction and disposition hearing. At the outset, Agency social worker Mark Hood informed the court that the mother (Kemper) had called his office to say she was on her way to court from Los Angeles. The court then trailed the matter until 1:30 in the afternoon. When Kemper had not arrived by 2:10 p.m., the court resumed the hearing, sustained jurisdiction under section 300, subdivision (g), declared NF a dependent child, and removed her from parental custody. The court did not appoint counsel for Kemper because she had not yet appeared in the action.

Shortly after the hearing, Kemper and the baby's alleged father arrived in the courtroom. The court clerk gave them Hood's phone number. The court scheduled a special hearing for the next month to appoint counsel for both parents.

On July 15, Kemper appeared at the continued hearing and the court appointed counsel for her (defendant De Soto).⁴ De Soto said she had discussed Kemper's "constitutional, trial and statutory" rights with Kemper, and Kemper understood those rights. When the court asked about the appointment of a guardian ad litem, De Soto said she had spoken with Kemper and both she and Kemper believed a guardian ad litem was not necessary. De Soto requested that the court facilitate services in the Los Angeles area where Kemper lived, and the Agency's counsel agreed it was appropriate to do so (at least with respect to ordered therapy). The court spoke directly to Kemper about the importance of complying with the ordered services in a timely fashion.

About eight months later, in February 2009, the court held a contested six-month review hearing. Kemper was present and represented by defendant Kisiel. At the hearing, the Agency submitted two social worker reports, and requested termination of reunification services based on evidence showing Kemper had only minimally participated in services and visitation. Kisiel did not present any affirmative evidence or cross-examine the social workers, but requested the court continue services for Kemper, arguing Kemper's progress had been sufficient; she had appeared for court hearings; she had made progress in parenting classes; she had engaged in therapy; and she had made best efforts to comply with the plan despite living in Los Angeles County.

NF's counsel requested that the court follow the Agency's recommendation, emphasizing Kemper's repeated failure to participate in reunification services.

At the end of the hearing, the juvenile court rejected Kisiel's arguments, terminated reunification services, and set a section 366.26 selection and implementation hearing. The court found Kemper had received adequate services, but had not made substantial progress with her case plan and there was no substantial probability of NF's return to her parents' physical custody in the next six months.

Kemper signed a notice of intent to file a writ petition challenging this order (see rules 8.450, 8.452), but after Kisiel's supervisor, defendant Gulemi, reviewed the record and spoke with Kisiel, Gulemi determined there were no viable issues for review. In March 2009, Gulemi communicated this conclusion to Kemper by letter, and told her to call him collect if she had any questions or concerns.

This same month, Kemper was arrested and became a dependent of the Los Angeles County juvenile court, which placed her into foster care. While in foster care, Kemper gave birth to another child.

Kemper's San Diego County case was then transferred to another attorney in the same office, Sharon MacGillis. After reviewing the file, MacGillis requested that supervisor Gulemi transfer the case to an independent attorney, believing there had been substantial problems with the legal representation in the case. Gulemi declined to approve the transfer, and instructed MacGillis to instead file a section 388 motion challenging the factual and legal support for the prior orders and presenting evidence of Kemper's recent progress in accepting responsibility and taking care of herself.

In May and August 2009, MacGillis filed the section 388 modification petitions, arguing (1) the court prejudicially erred in failing to appoint a guardian ad litem at the July 2008 hearing; and (2) Kemper's improved circumstances supported an extension of reunification services or return of the child. On the second ground, MacGillis admitted Kemper had been "unstable," but argued and presented evidence that her circumstances had changed because she was now in foster care in Los Angeles, enrolled in school, attending parenting classes, living with a supportive foster mother, and providing excellent care to her new second child.

The juvenile court found Kemper made a prima facie case supporting both grounds for the motions, and then held a combined hearing on the two section 388 petitions and the section 366.26 reference. At this hearing, the court received into evidence all of the Agency's reports and the minute orders from the prior hearings, including the detention and jurisdiction hearings. Several witnesses testified, including Kemper, her foster mother, social worker Hood, and a Riverside County social worker in Kemper's dependency case. At the conclusion of the evidence and argument, the juvenile court found that although a guardian ad litem should have been appointed and this "error was not harmless, ... the requested modification was not in [the child's] best interests because [Kemper] could not safely parent [her child]." (N.F., supra, D055922.) The court thus denied the section 388 motions, and entered a final judgment terminating Kemper's rights.

Kemper filed a notice of appeal and an appellate attorney was appointed to represent her.

II. N.F. Appellate Decision

On appeal in the N.F. case, Kemper's appellate counsel challenged the orders denying Kemper's section 388 motions and the judgment terminating her parental rights. On the section 388 issues, counsel argued the juvenile court abused its discretion in refusing to return the child to Kemper based on the court's earlier failure to appoint a guardian ad litem and based on her new and improved circumstances. In challenging the judgment terminating parental rights, Kemper's counsel argued the judgment was the result of Kemper's appointed counsel's ineffective assistance in the proceedings below. Kemper's counsel identified three instances of alleged deficient representation: (1) the failure to challenge the jurisdictional findings under section 300, subdivision (g) ; (2) waiving appointment of a guardian ad litem; and (3) failing to raise these issues in a writ petition filed after the six-month hearing in which the court terminated reunification services. (N.F., supra, D055922.)

In June 2010, this court filed N.F., rejecting Kemper's appellate contentions and affirming the court's section 388 orders and parental-termination judgment. (N.F., supra, D055922.) On the section 388 issues, we held the juvenile court erred in not appointing a guardian ad litem and the appointment "may have made a difference in the outcome of the jurisdiction and disposition hearings," but the juvenile court "acted well within its discretion" in denying the section 388 motion because a custody change was not in the child's best interests. (N.F.,supra .) We also held the juvenile court did not abuse its discretion in concluding that Kemper remained unable to safely parent NF and in finding that...