Filed 11/25/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LESLIE O., No. B257385
Petitioner, (Super. Ct. No. PD054501)
v.
OPINION AND ORDER
THE SUPERIOR COURT OF LOS GRANTING PEREMPTORY
ANGELES COUNTY, WRIT OF MANDATE
Respondent;
THOMAS O.,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for a writ of mandate. C. Virginia Keeny,
Judge. Petition granted.
Lipton & Margolin, Hugh A. Lipton and Brian Gregory Magruder for Petitioner.
No appearance for Respondent.
Law Offices of Fletcher, White & Adair, Paul S. White; Law Offices of Dacorsi,
Placencio & Rumsey and Denise Susan Placencio for Real Party in Interest.
_________________________
Petitioner in a marital dissolution case moved to have the child custody evaluator
removed for bias and her evaluations stricken. The trial court denied the motion. We
conclude the court erred in finding insufficient evidence of bias and denying the motion.
We grant the petition and issue a peremptory writ of mandate.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, Ann M. Convertino, LCSW (Convertino), was appointed as
the child custody evaluator in this case. Convertino 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
1 As there is not a plain, speedy and adequate remedy at law, and in view of the
fact that the issuance of an alternative writ would add nothing to the presentation already
made, we deem this to be a proper case for the issuance of a peremptory writ of mandate
“in the first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v.
Superior Court (2010) 47 Cal.4th 1233, 1237–1238; Lewis v. Superior Court (1999) 19
Cal.4th 1232, 1240–1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–
1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) We requested and received
opposition and notified the parties of the court’s intention to issue a peremptory writ.
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
2 In an effort to protect the parties and the child, however, we have sought to
disclose only the information necessary to our analysis. We include no specific
quotations from the confidential evaluations themselves.
2
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.”
Convertino 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 Convertino that Leslie suffered from a severe mental illness and asked her
therapist, Burr, to contact Convertino to disabuse her of any such notion. Burr e-mailed
Convertino 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.”
Convertino responded by e-mail, reassuring Burr that Convertino 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.”
Convertino 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
3She was authorized to have ex parte communications with the parents by
California Rules of Court, rules 5.220(e)(2)(B) and 5.235(a).
3
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.” Convertino 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 Convertino 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, Convertino 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
Convertino’s evaluation.
4 It might have been these injuries that caused a social worker concern as to
Munchausen’s syndrome by proxy (see fn. 5, post), although it is unclear how the genesis
of the injuries could have been attributed to Leslie since the bicycle accidents had
occurred when Wyatt was with Thomas.
4
Thomas and Convertino had communications that suggested to Leslie that
Convertino 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 Ann
[Convertino] first. After I talk to her, I will reply to your questions.” On that day, Leslie
e-mailed Convertino: “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, Convertino 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. [¶] . . . Ann M. Convertino, LCSW.”
On November 19, 2012, Convertino 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
5 “Munchausen’s syndrome by proxy [is] a condition whereby a parent secretly
causes the child’s illness in order to attract attention or sympathy . . . .” (Ramona v.
Superior Court (1997) 57 Cal.App.4th 107, 120.) This attention or sympathy is referred
5
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
Convertino on November 20, 2012, asking that Convertino 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 Convertino change that part of the evaluation as well.
Convertino responded to Burr, representing that she did not realize Burr was
Leslie’s current therapist, “or I would have taken more care in quoting you directly.” She
denied she had “actually endorsed the idea that Mother [Mrs. O.] has a severe mental
illness. It was the DCFS worker who raised the issue of Munchausen’s and because she
did, I had to include it in my report as something she brought up. However, in my final
analysis, I reserved judgment on the issue, noting that it could be temperament, training,
or the wish to do things differently in this custody situation then [sic] she had in the last
one with her adult sons. Any of these possibilities is plausible to me, but in my mind, the
proof will be in how Mrs. O[.] responds to the reality that she cannot continue in the
manner that she has been with regard to her attitude and behaiors [sic] toward Mr. O[.]
because there is no objective support for her positions.” Convertino acknowledged
to as a “‘secondary gain’” benefiting the offending parent. (Williamson v. State of Texas
(2010) 356 S.W.3d 1, 11.)
6
Thomas had anger issues and that she believed she had made the appropriate
recommendations to address these in her evaluation. She added, “I cannot change
anything that has already been written as it has been submitted to the attorneys. I will be
submitting an addendum, with regard to the parenting plan, related to something I
misunderstood from Mr. O[.]’s perspective that must be addressed. But that is a change
in the final points of the plan, not in the substance of how I reached the conclusion that
the plan should be as I outlined.” In closing, Convertino asked, “I am wondering if Mrs.
O[.] shared the report with you.”
On November 23, 2012, Burr e-mailed Leslie’s attorneys, stating: “I am quoted in
the . . . custody evaluation in such a selective way that the intent of my reporting is
skewed. I have asked Ann Convertino to change the wording she used because it lacks
the context in which it was used, but she said the change cannot be made as the document
has ‘gone to the attorneys.’ After telling me this, she explained that she was, however,
making an addition to the report concerning the custody scheduling. I guess some things
can be changed and some cannot. . . . [¶] Specifically, she quotes me as saying,
‘shoving, pushing and at least one incidence of Leslie striking Tom,’ and repeats this
quote several times.” Burr expressed concern that the statement was incorrect, taken out
of context, and “it sounds as though ‘Leslie striking Tom’ was something . . . which
happened repeatedly.” Burr also observed Convertino had told her that she had to report
the social worker’s comment about Munchausen’s syndrome by proxy simply because it
was “brought up.” Burr pointed out that she had brought up something critical of
Thomas to Convertino, but Convertino had failed to include that in her evaluation. She
added that the social worker was unqualified to make such a diagnosis of Leslie. Finally,
Burr expressed her opinion that Convertino was biased against Leslie.
There were other complaints from medical professionals about incorrect, out of
context statements and potential bias in Convertino’s evaluation. Wyatt’s lifelong
pediatrician, Stacie Gereb, wrote to Convertino on November 27, 2012, expressing
concern that, although she was told to expect a call from Convertino, the evaluator had
never contacted her. Gereb was extremely critical of Thomas’s inattention to Wyatt’s
7
physical safety, explaining Wyatt had had three bicycle accidents during the four-month
period of August through November 2012, all while in Thomas’s care. Apparently in
contrast to something in Convertino’s evaluation, Gereb said Wyatt could not have been
wearing a helmet during the second accident due to the location of a bump on his head.
Gereb opined that three-year-old Wyatt, who suffered from muscle weakness and
clumsiness, should not even have been riding a bicycle. Gereb complained that
Convertino’s evaluation misquoted Gereb’s physician’s note, which had stated that Wyatt
was not wearing a helmet during the second accident. The note also explained that Wyatt
had broken his arm and had blood in his stool as a result of the third accident, which
occurred November 4, 2012.
On November 27, 2012, Dr. M. Howell e-mailed Convertino, contending
Convertino had taken Howell’s comments to her out of context. It appears from the
e-mail that Convertino had concluded in her evaluation, based on something Howell had
told her, that Wyatt was being injured more frequently than would be expected, Leslie
was taking him to the doctor more frequently than would be expected, and Leslie might
suffer from Munchausen’s syndrome by proxy. Howell protested that these allegations
were unfounded and explained why, concluding: “If there is a pattern in the child’s
atypical or high velocity injuries, that links neglectful behavior, to a specific caregiver, I
hope you are able to discover the cause, but it is not my opinion that Ms. O[.] is
expecting secondary gain[6] from her child’s recurrent injuries.”
Around this time, Convertino sent the court a “revised” evaluation which is not
part of the record. Apparently, it clarified that the social worker who said she suspected
Leslie suffered from Munchausen’s syndrome by proxy was from the Los Angeles
County Department of Social Services. The record does not suggest Convertino added
anything in the revised report reflecting the additional information and corrections
received from Burr, Gereb, and Howell.
6
This is medical terminology for the benefit derived by a parent who suffers from
Munchausen’s syndrome by proxy.
8
On November 28, 2012, Convertino sent the following e-mail to Leslie’s then-
attorney, William Robinson, and Thomas’s then-attorney, Rand Pinsky: “Dear Counsel,
[¶] As you know from my previous correspondence, I have received two complaints
from collateral sources of information [Burr and Howell] who have been given copies of
the Child Custody Evaluation report by Mrs. O[.] and have emailed me to argue and/or
ask for changes in what they originally conveyed to me. I have now received a long
email from Wyatt’s pediatrician [Gareb], whom I did not speak with, because I was able
to obtain an overview of all the medical information from Kaiser through one of the staff
Social Workers which was adequate to my inquiry. [¶] The pediatrician is also
complaining of being misquoted, although what I wrote came from the hospital Social
Worker. I am unsure what, if anything, can be done to persuade Mrs. O[.] to refrain from
sharing the contents of what is supposed to be a confidential report with whomever she
chooses. However, I believe that her actions should be noted and possibly brought to the
attention of the Court as well.”
On November 30, Pinsky responded, “I agree with your comments about
informing the court of her conduct.”
The same day, Convertino responded to Pinsky without copying Robinson: “I
already have. I sent the Court the ‘revised’ version of the report and copies of the two
letters I sent to you and Mr. Robertson [sic] as the quickest explanation of all the issues
that have transpired since I actually finished and emailed the report to you. However,
that letter only references her showing the report to two people when it’s actually been 3
that I know of.”
On December 7, 2012, Convertino signed an “Addendum” to her evaluation. The
sole topic was that Convertino had misunderstood Thomas’s work schedule, the visitation
schedule she had proposed would be inconvenient to his work schedule, he had objected
to her proposed visitation schedule, and an alternative schedule could be substituted for
the original one. The Addendum did not mention any of the points raised by Burr, Gereb,
or Howell.
9
On December 19, 2012, the trial court held a hearing following its review of
Convertino’s evaluation and ordered that Convertino prepare a supplemental evaluation
to cover the next three months.
On February 16, 2013, Thomas e-mailed Convertino. “Hello Ann, [¶] I had a
meeting with my lawyer at the end of January to make the schedule for visitation for
February and March. Leslie is totally out of control . . . .” He went on to lament the grief
the custody battle was causing him and his family. He also expressed confusion as to
where he could obtain information about his case. He told her his lawyer was not
returning his calls and had implied he should keep in touch with Convertino regarding
developments in the case, but he also acknowledged she had previously advised the
parties they should cease communications with her because her evaluation was complete.
He asked her whether he should continue to contact her.
Convertino responded the same day as follows: “I am genuinely sorry to hear of
all the continued difficulties with your case. Let me tell you what I know. After
receiving emails from both you and Leslie in early January, that a Supplemental
Evaluation had been ordered, I emailed both attorneys with regard to this and asked what
the return date for the report would be. On January 17th, your attorney sent me a copy of
the Court transcript for the 12/19/12 hearing. A few days later, I heard from Leslie’s
attorney and then I emailed both that my fee for a Supplemental Evaluation was $3500.00
and that to make a 3/26/13 return date (as indicated in the transcript) I would need to
begin soon. [¶] I have not heard from either attorney since. At this point, the attorneys
would usually drive the process by determining how payment is to be made and getting
back to me about a start date, but since I have not heard from either of them, time has
gone by, and we will likely need a short continuance for me to have adequate time to
produce a report. [¶] Please let me know if you plan to continue with your current
attorney or seek new counsel, so that I know who to contact about the need for a
continuance. As you know, I would also need a retainer of $1750 to begin, with the
balance due prior to the completion of the report. [¶] Finally, the reason I told you and
Leslie not to continue copying me on your correspondence, after I completed the first
10
evaluation, is because Evaluators cannot continue working on a case without further
orders from the Court. I was not aware that further orders were actually made until
sometime in January, and it seems both attorneys have gone silent on the issue of
ensuring that payment arrangements are made and the case is moving forward. [¶] Please
let me know how you would like to proceed. [¶] Best regards, [¶] Ann M. Convertino,
LCSW.”
On February 17, 2013, Thomas e-mailed back, saying his lawyer had “quit
replying to my pleas for help” and had failed to remedy a mistake as to visitation times
“that has caused me so much heart ache ever since the” custody hearing. He reported,
“The problems with Leslie are spiraling out of control and my lack of help from anyone
is causing myself and my whole family a tremendous amount of grief.” He complained
about specific instances of Leslie’s conduct in November and December and reported that
his lawyer had been unprepared and unfamiliar with the facts at the December 19
hearing. He stated, “I really thought the diagnosis from the Child and Family Services of
Leslie having Munchausen By Proxy would have added some weight to the fact that
Leslie has some serious problems that need to be addressed and I had hope she would
have at least been ordered to get some help as you recommended. [¶] I confronted
Wendy, the representative from Child Services and asked her if they were going to
pursue their diagnosis of Leslie. She finally admitted that it was too hard to prove and
that she had only recontacted me to wrap things up and close the case. She responded as
everyone responds!”
That same night, Convertino e-mailed Thomas back as follows: “Mr. O[.], [¶]
[Were] you given a copy of my report to read? Your attorney was emailed a copy well in
advance of the Court date which makes your description of what has happened prior to
your hearing incomprehensible to me. From your description of what has happened, it
would appear that you need a new attorney. I did my job, and worked very hard to
provide a comprehensive and balanced analysis of a very complicated situation with a lot
of moving parts. At this point a Supplemental has been ordered by the Court and it either
needs to be done, or the Court informed of why it cannot be done and the order vacated.
11
The issue of who pays is simply one of many issues that has seemingly not been pushed
or addressed by your attorney and it is beyond the scope of my role as an evaluator to
advise you what to do. [¶] I will email both attorneys that the issue of payment has not
been resolved and that I will issue a short report to the Court that a Supplemental Report
will therefore not be forthcoming. I would truly like to see the right things done in your
case but I can only say what I think those things should be. It is up to the attorney to take
what I provide and bring that before the court in a compelling way. [¶] Best, Ann M
Convertino, LCSW.”
On February 17, 2013, Thomas sent an e-mail to Convertino stating: “Ann, I
know you did your part and spent a great deal of time on the report. There was a ‘Justice’
party planned . . . for right after the hearing based on what I read in your report along
with all the other events I had pointed out that Leslie had pulled. [¶] My guys from work
and my family have been hanging on every step of the build up to the last hearing. The
guys said they needed to know there was justice in this world and we were all going to
celebrate the outcome of the custody hearing. They all know what Wyatt means to me.
[¶] I’m living in a bad dream that I cannot awake from. I appreciate all that you did and
all that you could contribute in the future, but I don’t have a clue where I stand. Had I
not written you I would not even know that this next report even existed. [¶] I don’t
know what to say. Once again, please let me know what’s going on if you hear
something.”
On February 17, 2013, Convertino responded: “I just want to be clear. There was
only one report written by me so far. I actually found out from you and Leslie when you
both emailed me in January that a Supplemental had been ordered. Just because I
recommend something does not mean a Judge orders it. Normally, I would have been
informed of this order by the attorneys but I did not hear from either of them about it.
That is unusual. It is also unusual for an attorney to let so much time go by, with the
return date for the Supplemental approaching, without driving the process to ensure that
payment is made and the process has commenced. [¶] If your attorney is not working for
you, perhaps a second opinion is in order. [¶] Ann C.”
12
On May 9, 2013, Thomas sent Convertino another e-mail complaining that Leslie
had refused his offer to change the visitation schedule. The same day, Convertino
responded, “You made a reasonable offer to solve the problem. I will make more of that
too. Please keep me updated if you get a response from her about the change.”
On May 24, 2013, Convertino submitted her supplemental evaluation. It is not
part of the record.
B. Procedural history
On April 14, 2014, after taking the deposition of Convertino and subpoenaing
files containing her e-mails with Thomas, Leslie made an ex parte application in the trial
court, seeking the removal of Convertino and the striking of her evaluations due to bias.
Judge Keeny had replaced a previous judicial officer by this time. She denied ex parte
relief but set a hearing for May 9, 2014.
On May 9, 2014, the trial court held a hearing on Leslie’s motion to remove
Convertino and strike her evaluations. No oral testimony was offered. Leslie’s counsel’s
argument was cut short because Judge Keeny had another pressing matter scheduled to be
argued immediately after Leslie’s motion. The motion papers did not attach Convertino’s
evaluations, and Judge Keeny, who was not assigned to the matter when the evaluations
were submitted, stated at the hearing that she had not read them. She had, however,
received and read the communications and documents described above, all of which were
attached to the moving papers as exhibits to Leslie’s attorney’s declaration in support of
the motion. The facts were undisputed. Their legal effect was the issue. Leslie’s
attorney argued, inter alia, that the e-mails, taken together, established bias requiring the
removal of Convertino. Judge Keeny recognized that the case was a “close case” that
raised “serious questions about the evaluation,” but ultimately determined there was
insufficient evidence of bias to warrant disqualification of Convertino or striking her
evaluations.
Leslie filed the current petition for a peremptory or alternative writ of mandate,
prohibition or other appropriate relief. We granted a stay and requested opposition,
which was received, as well as Leslie’s reply. Leslie’s current petition is founded on two
13
contentions, both raised previously in the trial court. The first is that Convertino violated
rule 5.220(h)(1) of the California Rules of Court by failing to “[m]aintain objectivity,
provide and gather balanced information for both parties, and control for bias” so that
Convertino must be removed and her report stricken. Leslie’s second contention is that
the November 30, 2013 e-mail from Convertino to Thomas’s attorney, which was not
copied to Leslie’s attorney, was an improper ex parte communication that should have
resulted in Convertino’s disqualification.
DISCUSSION
We conclude the trial court erred in failing to remove Convertino for bias against
Leslie and to strike Convertino’s evaluations, considering the totality of the
circumstances. Consequently, we need not discuss the parties’ other contentions.
A. Standard of review
The only California case to discuss the issue of the standard of review in assessing
a trial court’s denial of a motion to remove a child custody evaluator is In re Marriage of
Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1563–1564. There the court stated,
“[W]e must first evaluate whether the court properly denied father’s motion to remove
the evaluator before we can consider whether the court appropriately awarded mother
sole legal custody. In reviewing the court’s ruling on father’s removal motion, our
threshold inquiry is whether [the evaluator] exhibited bias against father (in violation of
Cal. Rules of Court, rule 5.220(h)(1)) prior to father’s filing of the removal motion. The
facts (set forth in father’s removal motion) are essentially undisputed. Although mother
sought to explain and justify [the evaluator’s] actions, she did not dispute they occurred.
Thus, whether [the evaluator] was biased against father is a question of law we may
review de novo.” The Adams court went on to note that the applicable standard was
“unclear,” but that the same result would be achieved if an abuse of discretion test were
applied. (Adams, at p. 1546.) The same is true here. Whether we review de novo or for
abuse of discretion, the evidence required removal of the evaluator for bias.
14
B. Applicable law
“Over a century ago, our Supreme Court recognized the need for court-appointed
‘disinterested . . . experts who shall review the whole situation and then give their opinion
with their reasons . . . regardless of the consequences to either litigant. [Citation.]
Section 730 [of the Evidence Code] serves this function by authorizing a court to ‘appoint
a disinterested expert who serves the purpose of providing the court with an impartial
report.’ [Citation.] ‘The job of third parties such as . . . evaluators involves impartiality
and neutrality, as does that of a judge . . . .’ [Citation.] . . . [¶] Because ‘the results of
an independent evaluation generally are given great weight by the judge in deciding
contested custody . . . issues, the Judicial Council has adopted rules of court establishing
uniform standards of practice for court-ordered custody evaluations.’ [Citation.]” (In re
Marriage of Adams & Jack A., supra, 209 Cal.App.4th at pp. 1562–1563.)
Rule 5.220 et seq. of the California Rules of Court establish the rules for child
custody investigations and evaluations. “A ‘child custody evaluation’ is an expert
investigation and analysis of the health, safety, welfare, and best interest of children with
regard to disputed custody and visitation issues.” (Cal. Rules of Court, rule 5.220(c)(3).)
“In performing an evaluation, the child custody evaluator must: [¶] (1) Maintain
objectivity, provide and gather balanced information for both parties, and control for bias;
[¶] (2) Protect the confidentiality of the parties and children in collateral contacts and not
release information about the case to any individual except as authorized by the court or
statute; [¶] . . . [¶] (4) Consider the health, safety, welfare, and best interest of the child
in all phases of the process . . . .” (Cal. Rules of Court, rule 5.220(h); see Fam. Code,
§ 3011.)
“All evaluations must include: [¶] . . . [¶] (2) Data collection and analysis that
are consistent with the requirements of Family Code section 3118; that allow the
evaluator to observe and consider each party in comparable ways and to substantiate
(from multiple sources when possible) interpretations and conclusions regarding each
child’s developmental needs; the quality of attachment to each parent and that parent’s
social environment; and reactions to the separation, divorce, or parental conflict. This
15
process may include: [¶] (A) Reviewing pertinent documents . . . ; [¶] (B) Observing
parent-child interaction . . . ; [¶] (C) Interviewing parents conjointly, individually, or
both . . . to assess: [¶] (i) Capacity for setting age-appropriate limits and for
understanding and responding to the child’s needs; [¶] (ii) History of involvement in
caring for the child; [¶] (iii) Methods for working toward resolution of the child custody
conflict; [¶] (iv) History of child abuse, domestic violence, substance abuse, and
psychiatric illness; and [¶] (v) Psychological and social functioning; [¶] (D) Conducting
[a wide variety of interviews]; [¶] (E) Collecting relevant corroborating information or
documents as permitted by law; and [¶] (F) Consulting with other experts to develop
information that is beyond the evaluator’s scope of practice or area of expertise.” (Cal.
Rules of Court, rule 5.220(e)(2)(A)–(F).)
The child custody evaluation is confidential. (Fam. Code, § 3111, subds. (a), (b).)
“If the court determines that an unwarranted disclosure of a written confidential report
has been made,” the court may impose monetary sanctions “unless the court finds that the
disclosing party acted with substantial justification . . . .” (Fam. Code, § 3111, subd. (d).)
While ex parte communications between the parents and the evaluator are allowed,
and indeed necessary, ex parte communications between the evaluator and the parties’
attorneys, and between the evaluator and the court, are prohibited, except in specific
circumstances not relevant to our analysis. (Fam. Code, § 216, subd. (a); Cal. Rules of
Court, rule 5.235(c)–(f).)
C. Considering the totality of the circumstances, Convertino’s communications and
conduct demonstrated actual bias against Leslie
Convertino’s communications are replete with indicia of actual bias against Leslie.
In addition, Convertino stepped outside her role as evaluator to advocate against Leslie
and help Thomas. Considering the totality of the circumstances, Convertino’s
communications and conduct establish her removal was necessary to protect the interest
of Wyatt in an unbiased evaluation.
16
1. Convertino’s e-mails to the attorneys and the communications underlying
them
Leslie contends the November 2012 e-mails from Convertino to the parties’
attorneys demonstrate bias against her. To understand the e-mails, one must understand
what prompted them. When Leslie saw Convertino’s evaluation in November 2012, she
quickly showed it to three doctors, apparently because she believed their statements to
Convertino or the physician’s notes were misquoted, taken out of context, or twisted in
favor of Thomas. The three doctors were Leslie’s own therapist, the person with the
most knowledge of her mental status, Wyatt’s lifelong pediatrician, the person with the
most knowledge of his history of injuries, and Howell, one of the physicians who treated
Wyatt after his bicycle accident. All three doctors confirmed they had been misquoted or
misunderstood. Each offered important firsthand information he or she was qualified to
provide. These doctors had more information and were more qualified to assist the
investigation than the social worker, the public health nurse, and even the neighbor who
reported Wyatt always wore his bicycle helmet. Indeed, it is puzzling why Convertino
relied in her initial evaluation on such peripheral sources and not on Leslie’s own
therapist or Wyatt’s lifelong physician. The information the three doctors supplied cast
doubt on the accuracy of the evaluation and reflected poorly on Convertino’s diligence
and objectivity.
The hearing was not scheduled to occur until December 19, 2012. This gave
Convertino time to supplement her evaluation with critical information omitted from it,
as well as to correct any errors she might have made in repeating the illogical speculation
of unqualified persons, who did not know Leslie, to the effect she had Munchausen’s
syndrome by proxy or another serious mental condition. Correction seemed warranted,
as Convertino had referred to Leslie’s mental health 78 times in her report without
making any serious inquiry of Leslie’s own therapist, who was identified as Leslie’s
current therapist in Convertino’s files.
Gereb and Howell had provided information that indicated a strong likelihood that
Thomas, rather than Leslie, was responsible for the multiple injuries to Wyatt that likely
17
had caused the social worker to suspect Leslie suffered from Munchausen’s syndrome by
proxy, thereby discrediting the social worker’s “diagnosis.” Indeed, Gereb and Howell
raised serious red flags about Thomas’s attention to the safety of a special needs child
with muscle weakness and clumsiness who arguably should not have been on a bicycle at
age three and who had suffered a broken arm, blood in his stool, and a suspicious head
injury within a four-month period while under Thomas’s care.
Burr also had corrected Convertino’s ill-founded and allegedly “skewed”
conclusion in her evaluation that Leslie had “hit” or “struck” Thomas after he pushed her.
All of this was crucially important to the health, safety, welfare, and best interests
of Wyatt, which were supposed to be Convertino’s paramount concern.
Convertino could have provided a revision or addendum to her report in time for
the December 19 hearing date. She was able timely to submit a “revised” report
clarifying the identity of the social worker who raised the specter of Munchausen’s
syndrome by proxy and an “addendum” designed to accommodate Thomas’s work
schedule.
Instead, she claimed she could not add this important information to her
substantive evaluation because it had been “submitted to the attorneys already.” The
California Rules of Court make clear that the child’s health, safety, welfare, and best
interests are of paramount concern. The rules say nothing about any inability to
supplement a report that has been submitted to the attorneys. Indeed, the authority to
supplement a report after it has gone to the attorneys seems implicit in the need to assure
the best interests of the child are served when important new information becomes
available or information included in a report already submitted proves unreliable. It was
at least as important for Convertino to correct any errors or omissions she might have
made than to add an addendum to accommodate Thomas’s work schedule or to revise the
evaluation to identify the person who mentioned Munchausen’s syndrome by proxy.
In the November e-mails to the attorneys, Convertino’s tone is piqued. She
obviously is annoyed that Leslie caused other professionals to question her and highlight
her reliance on weak sources of information when much stronger ones were available.
18
Convertino’s characterization of Leslie as revealing the contents of a confidential
evaluation to “whomever she chooses” is unfair. The three doctors to whom Leslie
revealed the report were the most qualified witnesses to her mental status and Wyatt’s
injuries and appeared to have been misunderstood or misquoted. This is a far cry from
revealing the evaluation to “whomever she chooses.”
In her November 28 e-mail to the parties’ attorneys, Convertino appears to stretch
the truth in her own defense. She tells the attorneys Burr and Howell have contacted her
“to argue and/or ask for changes in what they originally conveyed to me.” Neither Burr
nor Howell had asked her to “change” anything they had conveyed. They merely were
attempting to correct Convertino’s misstatements or misunderstandings.
Similarly, in the same e-mail Convertino defends herself from the accusation that
she misquoted Gereb by saying she did not even interview Gereb. However, Gereb was
not claiming Convertino had misquoted any oral statement. Rather, she was advising
Convertino that she had misquoted Gereb’s written physician’s note.
Convertino’s e-mailed statements to the attorneys that Leslie’s breach of
confidentiality should be reported to the trial court and her later statement that she
“already has” reported it to the trial court also are problematical. First, the kind of
communication Convertino appears to be referring to (a letter to the court) would be a
prohibited ex parte communication under Family Code section 216, subdivision (a) and
rule 5.235(c)–(f) of the California Rules of Court, unless there was a stipulation allowing
such communications, which is not in the record before us.
Second, a report to the court of a party’s breach of confidentiality is outside the
prescribed scope of what an evaluator is charged with doing. Rule 5.220(h)(2) requires
the evaluator to “[p]rotect the confidentiality of the parties and children in collateral
contacts and not release information about the case to any individual except as authorized
by the court or statute . . . .” This rule tells the evaluator not to violate confidentiality
herself. It does not bestow authority to rouse the judge’s ire against a party by reporting
violations of the rules of confidentiality. When Convertino took it upon herself to notify
19
the trial court of Leslie’s misconduct rather than leaving the matter to the attorneys, she
stepped beyond her role as evaluator and into that of an advocate against Leslie.
The e-mails that underlie the November e-mails to the attorneys also reveal
Convertino’s bias. Convertino’s contention in her e-mail to Burr that she had to put the
reference to Munchausen’s syndrome by proxy into the evaluation just because it was
“brought up” was inconsistent with her role as evaluator. In that role, she was charged
with protecting Wyatt. It was not in his best interests to report to the court unfounded
speculation by unqualified individuals that was very harmful to Leslie just because it was
brought up. As Burr noted, Convertino’s professed conviction that she had to report
every morsel of gossip, reliable or not, does not appear to have been applied
evenhandedly. Convertino did not report Burr’s negative comments about Thomas, even
though they were brought up before the evaluation was completed. Moreover,
Convertino did not trouble to correct her report to add them when they were brought up
after the evaluation was submitted.
Convertino’s response to Burr’s November 5, 2012 e-mail also seems to have been
disingenuous. Burr told Convertino that Leslie was concerned Convertino believed she
had a “major mental illness diagnosis.” Convertino responded, assuring Burr that
Convertino 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.” However, two weeks later, that is exactly what Convertino appears to have
done by mentioning Munchausen’s syndrome by proxy and referring 78 times to Leslie’s
mental health issues without having discussed them substantively with Leslie’s current
therapist and after her current therapist had explained Thomas’s characterization of Leslie
as “bipolar” or “psycho” was only a product of his anger and that Leslie did not suffer
from any severe mental illness.
In her e-mails with Burr, Convertino also seems to have been fishing for evidence
that Leslie struck Thomas. Burr told her Leslie did not hit Thomas, but was only pushing
him away after he had pushed her in an “escalating rage.” Rather, Burr emphasized
Leslie’s relative passivity. In her evaluation, however, Convertino’s reporting appears to
20
have been “skewed” to emphasize Leslie’s “striking, pushing and shoving” Thomas and
to underplay his aggression.
Her e-mails to Burr also suggest Convertino had lost her objectivity, so she was
unable to appreciate or ignored the existence of evidence favorable to Leslie. She
advised Burr that Leslie could not “continue in the manner that she has been with regard
to her attitude and behaviors toward Mr. O[.] because there is no objective support for her
positions.” But in fact there was. Gereb complained to Convertino that her evaluation
had misquoted Gereb’s physician’s note stating Wyatt was not wearing a helmet during
the second accident in which he suffered a bump on his head inconsistent with wearing a
helmet. Howell also took Convertino to task for raising the possibility that Leslie
suffered from Munchausen’s syndrome by proxy and for failing to appreciate the
propriety of Leslie’s multiple visits to doctors with Wyatt, as his significant injuries had
been inflicted when he was under Thomas’s care, not Leslie’s. Howell further
discredited Convertino’s suggestion that Leslie suffered from Munchausen’s syndrome
by proxy by explaining Leslie was a highly competent nurse. Therefore, her level of
knowledge of medical matters should not have raised a “red flag” to the social worker
who associated such medical knowledge with Munchausen’s syndrome by proxy.
Convertino apparently was unable to see the doctors’ “objective” and rather obvious
support for Leslie’s position that Wyatt’s injuries resulted from Thomas’s negligence and
did not suggest she had Munchausen’s syndrome by proxy.
In addition to showing bias and failing to retain focus on Wyatt’s best interests,
Convertino’s dismissiveness with respect to the comments of Burr, Gereb, and Howell
was inconsistent with the requirements that she “gather balanced information for both
parties” (Cal. Rules of Court, rule 5.220(h)(1)); substantiate claims “from multiple
sources when possible” (id., rule 5.220(e)(2)); and consult “with other experts to develop
information that is beyond the evaluator’s scope of practice or area of expertise” (id., rule
5.220(e)(2)(F)).
Finally, when Leslie asked Convertino if she was “advising Tom on specific
matters,” Convertino’s response was, in effect, that she was helping Thomas to avoid
21
disclosing to Leslie something his lawyer might not want disclosed. In this way,
Convertino inappropriately stepped out of her role as evaluator and into the role of
guardian of Thomas’s litigation interests. The record does not reveal any comparable
efforts to protect Leslie’s interests.
2. E-mails between Convertino and Thomas
Leslie contends the February 16 and 17, 2013 e-mails between Convertino and
Thomas also show Convertino’s bias.
Leslie’s counsel argued at the hearing on her motion to remove the evaluator:
“Somewhere the child custody evaluator and the parties being evaluated . . . developed
into a different type of relationship. They were exchanging cozy little e-mails,
conversations about the case, not about instructions about the case, not about setting
appointments . . . . [¶] The e-mails make it very, very abundantly clear that the first
evaluation had ceased. What was the purpose of an evaluator having any communication
at all with someone where the evaluation had ceased? [¶] . . . Where is that sanctioned,
condoned? I suggest it’s not. In fact, somewhere in these e-mails she points that out.”
Leslie’s counsel made a good point. Convertino had finished her initial report and
made clear she would not supplement or correct it unless and until she was formally
retained to do so. Although she knew a supplemental report had been ordered, she did
not know if she would be retained to do it. Thus, she did not have any job to do during
the February 16 and 17, 2013 e-mails between her and Thomas.
One might argue that, since she had completed her evaluation in a manner
favorable to Thomas, she was permitted to demonstrate she favored Thomas, as that was
the natural consequence of having made the decisions she made in the evaluation.
However, Convertino knew by February 17, 2013, that she might be retained to prepare a
supplemental evaluation. She should not have allowed Thomas secretly to play on her
sympathies in a way that created further bias and which might contaminate any
supplemental evaluation she might be retained to prepare. Third, the evaluator’s duties
set forth in the California Rules of Court do not encompass the types of communications
that occurred in February 2013 between Convertino and Thomas. The February e-mails
22
reveal an evaluator stepping outside her prescribed role to help one party at the expense
of the other.
Moreover, Convertino’s response to Thomas’s February 16 e-mail did not advise
him to cease communications with her. Nor did it request he cease the then-pointless
criticisms of Leslie and apparent attempts to garner sympathy for his situation, both
prominently featured in his February 16 e-mail. Instead, Convertino asked Thomas to
keep communicating with her, to advise her how he wanted to proceed, and expressed her
sympathy for his continued difficulties.
Convertino assumed the role of information provider, telling Thomas the status of
his case without advising Leslie or her counsel she was doing so. The same information
might not have been provided to Leslie. Convertino overstepped her authority and
engaged in non-job-related and unauthorized ex parte communications helpful to
Thomas.7
Thomas’s February 17, 2013 e-mail to Convertino again complained about his
attorney and Leslie, solicited sympathy for his situation, and reported he had confronted
the social worker who had “diagnosed” Leslie with Munchausen’s syndrome by proxy
and expressed his disappointment at the social worker’s failure to act on the diagnosis. It
is difficult to detect any legitimate reason why Thomas would be making these
statements to Convertino. Nonetheless, Convertino again failed to discourage his
e-mails. Instead, she responded the same day with serious criticism of Thomas’s
attorney. She pointed out it was incomprehensible the attorney could be so uninformed
and unprepared at the hearing, given that he was armed with her helpful evaluation well
before the hearing. She advised Thomas to get a new attorney. Again, she stepped well
beyond her authority by attempting to help and advise Thomas.
7 Nor did she reveal the existence of her February 2013 e-mails with Thomas at
the time she was engaged to prepare and preparing the supplemental evaluation,
submitted in May 2013. They were only revealed to Leslie involuntarily via subpoena
almost a year after the supplemental evaluation was finished.
23
She also made comments that seem to have no legitimate purpose, telling him how
hard she worked and how balanced her evaluation was. She also continued to supply
information about the legal process and volunteered to intervene with the attorneys to get
the process moving along to alleviate Thomas’s problems in a manner adverse to Leslie.
These too were not the type of communications authorized by the applicable California
Rules of Court.
In the same e-mail, Convertino revealed bias in favor of Thomas by saying, in
effect, that she was on his side and had included in her evaluation things that should be
helpful to him if his attorney will just do his job properly. (“I would truly like to see the
right things done in your case but I can only say what I think those things should be. It is
up to the attorney to take what I provide and bring that before the court in a compelling
way.”)
Picking up on Convertino’s approval of his position, Thomas e-mailed her the next
day saying how much he appreciated what she had done in the past and what she could
contribute in the future. He asked for her help in supplying him with information as to
“what’s going on if you hear something.” He also pointed out that her evaluation was so
favorable to him that he and his friends had planned a victory party when they read it.
Again, instead of discouraging such flattery and expectations of future
contributions, Convertino helped Thomas by informing him his attorney’s performance
did not meet community standards and advising him he needed a new attorney.
By May 2013, Convertino had been retained to prepare a supplemental report, to
be submitted to the court. On May 9, 2013, Thomas apparently sought Convertino’s
assistance in connection with a visitation dispute he was having with Leslie, a role that is
beyond the purview of an evaluator. Instead of advising Thomas to have the attorneys
and the court work it out, Convertino revealed bias by expressing apparent sympathy for
his position as contrasted to Leslie’s. (“You made a reasonable offer to solve the
problem.”) She then appeared to promise to help him in the future by saying, “I will
make more of that too.” Finally, she encouraged him to keep her updated as to whether
Leslie would allow a change in the visitation schedule.
24
Thomas contends this case is distinguishable from In re Marriage of Adams &
Jack A., supra, 209 Cal.App.4th 1543, because the facts in that case were more egregious
than those here so Adams is thus distinguishable. Contrary to Thomas’s argument,
Adams does not establish a low watermark which dictates that only evaluators who fall
below it should be disqualified and all others should be immunized from removal. We
recognize that evaluation is an art rather than a science, and that different approaches
may be required in different cases. Consequently, trial courts must consider the totality
of the circumstances in deciding whether to remove an evaluator for bias. We caution
that an evaluator whose conduct in one or two respects appears similar to Convertino’s
conduct here may not need to be removed. To hold otherwise and thus to endorse
appellate micromanagement of every communication or act by the evaluator would make
it impossible for evaluators to perform their very difficult and crucial functions.
Nonetheless, we conclude the trial court erred in failing to remove Convertino for
bias against Leslie and to strike Convertino’s evaluations, considering the totality of the
circumstances. In light of our conclusion, we need not address the parties’ remaining
arguments.
25
DISPOSITION
THEREFORE, let a peremptory writ of mandate issue, commanding respondent
superior court to vacate its order of May 9, 2014, denying petitioner Leslie O.’s request
for an order removing and disqualifying the child custody evaluator and striking the
evaluation reports, and to issue a new and different order granting same, in Los Angeles
Superior Court case No. PD054501.
The temporary stay order is hereby terminated.
Petitioner is awarded costs.
CERTIFIED FOR PUBLICATION.
MILLER, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
26