Leslie O. v. Superior Court of L. A. Cnty.

231 Cal.App.4th 1191

180 Cal.Rptr.3d 863

LESLIE O., Petitioner,

v.The SUPERIOR COURT of Los Angeles County, Respondent;

Thomas O., Real Party in Interest.

No. B257385

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

Filed November 25, 2014

As Modified December 19, 2014

Lipton & Margolin, Hugh A. Lipton and Brian Gregory Magruder, North Hollywood, for Petitioner.

No appearance for Respondent.

Law Offices of Fletcher, White & Adair, Paul S. White, Malibu; Law Offices of Dacorsi, Placencio & Rumsey, Woodland Hills, and Denise Susan Placencio for Real Party in Interest.

OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

MILLER, J.^*

Petitioner in a marital dissolution case moved to have the child custody evaluator removed for bias and her evaluations stricken. The trial court denied the motion. We conclude the court erred in finding insufficient evidence of bias and denying the motion. We grant the petition and issue a peremptory writ of mandate.¹

BACKGROUND

This is a marital dissolution case involving hotly contested issues of child custody. Petitioner Leslie O. and real party in interest Thomas O. have one minor child, Wyatt, who was born in 2009 with a condition causing him to have developmental delays and special needs. We set forth the record available to us with the utmost particularity, as the well-being of an unrepresented minor is at stake.²

We conclude that, considering the totality of the circumstances, the child custody evaluator's communications and her conduct in stepping out of her role as an evaluator to help Thomas, demonstrate bias sufficient to warrant her removal and the striking of her evaluations.

A. Facts

In September 2012, a licensed clinical social worker (LCSW) (the Evaluator), was appointed as the child custody evaluator in this case. The Evaluator had each parent identify persons with relevant information. Leslie listed Margaret Burr under the heading "Parent's Psychotherapists (current & past)." The form noted Burr had served as a joint counselor to Leslie and Thomas for four sessions in 2009, and subsequently had become Leslie's "Individual Counselor," seen in 2011 and "recently since divorce proceedings." The form also listed Stacie A. Gereb, D.O., as Wyatt's "Primary Pediatrician."

The Evaluator interviewed Leslie and Thomas individually.³ She also interviewed many other persons. Thomas contended Leslie suffered from a severe mental illness. At one time he characterized it as "Borderline Personality Disorder." Leslie feared Thomas had persuaded the Evaluator that Leslie suffered from a severe mental illness and asked her therapist, Burr, to contact the Evaluator to disabuse her of any such notion. Burr e-mailed the Evaluator on November 5, 2012, stating in pertinent part: "I observed—in my [joint counseling] sessions with them—that Tom labeled Leslie's controlling nature as ‘mental illness,’ saying she was bipolar. Leslie has told me that Tom's mother's therapist (who Leslie has never met) ‘diagnosed’ her as having a personality disorder. [¶] Although I believe these labels are simply part of the negative, angry fighting this estranged couple does ... Leslie is concerned that you may be under the assumption that she has a major mental illness diagnosis. [¶] She does not."

The Evaluator responded by e-mail, reassuring Burr that the Evaluator was not "assigning any weight to claims of mental illness for Mrs. O[.] that have not been appropriately diagnosed by a professional in a manner consistent with best practices." The Evaluator then indicated she wanted to know how the couple behaved during joint counseling sessions. In particular, she asked about Tom calling Leslie " ‘the C word’ " and saying things like " ‘fuck you bitch’ " and other extreme verbal abuse. She also asked about " ‘one incident of Leslie striking Tom’ " during a joint counseling session.

Burr responded that Tom had been extremely verbally abusive, using a loud voice, and was so agitated and aggressive that she wondered about his impulse control and became concerned about imminent violence and the potential need to call a security guard. She reported Leslie was "more passive overall," while Thomas "seemed to have no restraint and bullied her.... [¶] After one session I wrote: ‘Incident on Saturday ... he called her ‘cunt’ she walked away. There was a yelling match. Leslie says ‘it got physical—he pushed me and I hit him back.’ I ask her how, she holds both hands palms out, in a shoving motion.... [¶] This is the only time I can recall when anything physical happened while I was working with them, although I inquired each time we met, because of that one time." The Evaluator responded by asking Burr if there was any substantiation that Thomas had called Leslie a "cunt." Burr was unable to recall. Although her records revealed that Burr was Leslie's current individual therapist, the record before us indicates the Evaluator did not make any other significant requests to Burr for information about Leslie's mental health.

On or about November 4, 2012, Wyatt suffered a broken arm and other injuries in a bicycle accident while he was in the care of Thomas. This necessitated a trip to his pediatrician, Dr. Gereb, care by Dr. M. Howell, and serious surgery. Leslie contended Thomas was negligent in failing to protect three-year-old Wyatt from injury, as he had had three bicycle accidents in the four-month period from August through November 2012 while in Thomas's care. On at least one occasion, Wyatt had sustained a bump on his head in a position that demonstrated to Dr. Gereb that he could not have been wearing a helmet while riding the bicycle.⁴

Apparently in connection with Leslie's contentions that Thomas was negligent in failing to protect Wyatt, the Evaluator interviewed a neighbor who said Thomas was an extremely loving father, he was attentive to Wyatt's safety when Wyatt was on the bicycle, and Wyatt always wore a helmet while on the bicycle. The same neighbor reported that Leslie was unfriendly and controlling and that the neighbor had " ‘heard things’ " about her. The remarks are referred to in the record as having been included in the Evaluator's evaluation.

Thomas and the Evaluator had communications that suggested to Leslie that the Evaluator was "advising Thomas on specific matters." On November 7, 2012, Thomas e-mailed Leslie about arrangements for a visit the next day with Wyatt. He concluded by writing: "As far as answering the rest of your questions. I need to talk to [the Evaluator] first. After I talk to her, I will reply to your questions." On that day, Leslie e-mailed the Evaluator: "I am not sure I understand Tom's response correctly that he must first speak with you before responding. I apologize for my lack of understanding, but wondering if you are advising Tom on specific matters?" Leslie added that Thomas's statement regarding Wyatt's bicycle crash on November 4 "has many lies, fabrications and deceptions regarding the truth." On November 8, the Evaluator responded by e-mail to Leslie. "I am not advising Tom on anything as that would be beyond the scope of my role as Evaluator. However, he sent his 27 hour summary of events to me on Monday, and mentioned that his attorney had asked him to write it. I wanted him to send a copy to you, but needed to be sure this was o.k. with his attorney, as he asked him to write it and may have had a purpose I was unaware of. I did so, and then asked Tom to send it to you after his attorney said it was ok. [¶] ... [the Evaluator]."

On November 19, 2012, the Evaluator submitted her initial evaluation to the trial court. Neither party has supplied a copy of the evaluation to this court. From the record, we gather the evaluation made 78 references to Leslie's "mental status, problems and issues." It also stated a social worker (possibly investigating Wyatt's bicycle accident injury) "expressed some concern about her [ (Leslie's) ] mental health, and noted that in her view the amount of medical information that [Leslie, who is a nurse,] conveyed, with regard to the minor, and the way she conveyed it produced a ‘red flag’ for her regarding possible ‘Munchausen's by Proxy Syndrome’ (see definition in Evaluation Section of this report).^{[5 ]} She states that she is unclear whether or not [Leslie] has ever had any real mental health assessment, and that a Public Health Nurse who accompanied her to the home visit at [Leslie's] house also had ‘the same impression’ regarding [Leslie], and the need for possible further inquiry regarding her mental health. [The social worker] states that overall, and at this time, she is not concerned about the child's physical safety with either parent."

Leslie showed the confidential evaluation to Burr immediately. Burr e-mailed the Evaluator on November 20, 2012, asking that the Evaluator make a few changes in her report. Burr wrote, "I currently see Leslie for individual therapy and I have never considered her to have any major mental health condition since she shows unimpaired functioning in her life in all areas other than this one. [¶] ... Is it possible to remove the implications of severe mental illness? [¶] Also, there is a slight correction I request in the details relating to the physical violence." She went on to say that it was a mischaracterization for the evaluation to say Leslie "hit" Thomas when she was merely pushing him away from her when Thomas was behaving in a threatening manner, pushing Leslie. Burr requested that the Evaluator change that part of the evaluation as well.

The Evaluator responded to Burr, representing that she did not realize Burr was Leslie's current therapist, "or I would have taken more care in quoting you directly." She denied she had "actually endorsed the idea that Mother [Mrs. O.] has a severe mental illness. It was the DCFS worker who raised the issue of Munchausen's and because she did, I had to include it in my report as something she brought up. However, in my final analysis, I reserved judgment...