Family Law Tentative Rulings

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1. SFL091637 

Petitioner Kathleen D. Parnell’s (“Petitioner”) request for order is DENIED.

ISSUE

Does Petitioner have a right to a hearing on the removal of Court appointed minor’s counsel Carolyn Vandyk (“Ms. Vandyk”) after this Court previously denied Petitioner’s grievance and request for removal under the Court’s local rules?

PROCEDURAL HISTORY

This Court appointed Ms. Vandyk as counsel for the parties’ two minor children (the “Minors”) on April 5, 2023. Prior to appointing her as minors’ counsel, this Court considered per California Rules of Court, rules 5.240 and 5.242 that Ms. Vandyk is approved by Sonoma Superior Court Family Law to serve as minor’s counsel and has completed all of the requisite training and education to serve as such. Additionally, Ms. Vandyk has regularly served as minors’ counsel per court appointment on numerous matters.

After Ms. Vandyk submitted her first Minor’s Counsel Report, Petitioner filed grievances to this Court pursuant to Local Rule 9.14(I)(1)(F) complaining that Minors’ counsel on the basis that Ms. Vandyk had an “ongoing professional relationship” with Respondent Christopher Vivian (“Respondent”), who is a licensed attorney practicing in Sonoma County, which Petitioner claims presents a conflict of interest for Ms. Vandyk. (See generally, Grievance re Minor’s Counsel.) Petitioner further complained of conduct in representing the Minors because she met with the Minors at Respondent’s home in private, she did not discuss with the Minors the issues that Petitioner wanted Ms. Vandyk to raise with them regarding Respondent’s alleged fat-shaming and abuse of Paige, she expressed her opinions about Petitioner’s legal representation with them, and because Petitioner believes Ms. Vandyk is biased in favor of Respondent. (Id.)

The Honorable James Bertoli, the Family Law Supervising Judge, recused himself from participating in this matter per C.C.P. section 170.1. The Presiding Judge, the Honorable Shelly J. Averill also recused herself on August 14, 2023, from participating in this matter per C.C.P. section 170.1. Finally, the matter came before this Court, which on August 16, 2023, denied Petitioner’s grievance on the basis that the Court found it untimely because it was filed 27 days after receipt of the July 14, 2023 report, whereas Local Rule 9.14(I)(1)(f) requires that a complaint regarding the performance of minor’s counsel be lodged no later than 20 days after receiving the minor’s counsel’s report or a complaint of the event. (Ruling re: Petitioner’s Grievance as to Minor’s Counsel Pursuant to Sonoma County Rule of Court 9.14(I)(1)(f).)  The Petitioner has not sought review of this denial.

Petitioner subsequently filed a request for order removing Ms. Vandyk as the Minors’ counsel. No proofs of service have been filed regarding the request, but Ms. Vandyk and Respondent have nevertheless filed oppositions.

DISCUSSION

Legal Standard

Removal of Minor’s Counsel

Sonoma County Superior Court Local Rule, rule 9.14(I) governs the appointment of minor’s counsel as allowed under Family Code section 3150. The minor’s counsel has a statutorily imposed duty to present the Court with recommendations based on what counsel believes will be in the best interests of the child in addition to what the child’s wishes are. (Fam. Code § 3151(a); A.F. v. Jeffrey F. (Cal.App.4 Dist. 2023) 307 Cal.Rptr.3d 326.) Minor’s counsel’s duties include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain evidence relevant to the custody or visitation hearings. (Fam. Code § 3151(a).) In order to carry these duties out, the minor’s counsel must have reasonable access to the child and the child’s health, education, and other personal records, have standing to seek affirmative relief on behalf of the child, and have notice of any proceeding, and all phases of that proceeding, including a request for examination affecting the child. (Fam. Code § 3151(c).)

The Court, in its discretion, may consider relieving minor’s counsel of appointment under these circumstances: (1) after a final order or judgment has been filed, or 90 days after; (2) per a motion filed by any party based for good cause; (3) if the minor’s counsel files a motion to be relieved if counsel does not believe he or she can effectively represent the child; and (4) at the annual review. The Court will not however relieve the minor’s counsel’s appointment if the Court if the Court deems it necessary upon a showing of good cause to extend the appointment, or requests periodic review or monitoring of the child related issues before the Court.

A party or counsel lodging a grievance to complain about court-appointed minor’s counsel’s performance must do so in writing and must serve the minor’s counsel the original copy of the complaint no later than 20 days after the event giving rise to the complaint or within 20 days of receiving any written report of the minor’s counsel. (Sonoma County Superior Court Local Rule, rule 9.14(I)(1)(f).) The minor’s counsel has to serve any written response no later than 10 court days to the party complaining, and may simultaneously request that the Court relieve his or her appointment and appoint a new minor’s counsel if needed.

If the minor’s counsel response cannot resolve the issue raised in the grievance, the complaining party must then serve a copy of the complaint and the response of the minor’s counsel, if any, on the supervising family law judge whose decision concerning the complaint, which may include removing the minor’s counsel from the panel of minor’s counsel used by the Court, will be considered as final. (Sonoma County Superior Court Local Rule, rule 9.14(I)(1)(f).)

Untimely Filings

“Local court rules and policies have the force of procedural statutes, so long as they are not contrary to legislative enactments.” (Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 177; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 32.) Though there is a strong policy in favor of disposing cases on their merits, judges may exercise their discretion in applying local court rules and may consider documents which have been untimely filed.  (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855; Slusher v. Durrer (1977) 69 Cal.App.3d 747, 753–754; Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 32.) Unless otherwise ordered or specifically provided by law, “all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service,” and the trial court has broad discretion to refuse to consider untimely papers. (C.R.C., Rule 3.1300; Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262.)

Evidentiary Hearing

Per Family Code section 217, at a hearing on any order to show cause or notice of motion brought pursuant to the code, the Court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties. However, the Court may make a finding of good cause to refuse to receive live testimony and shall state the reasons for doing so on the record or in writing. (Fam. Code. § 217(b).) Parties seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. (Fam. Code. § 217(c).)

Parties’ Briefs

Petitioner, through a request for order, asks this Court remove Ms. Vandyk as the court-appointed minor’s counsel based on the same grievances filed before and requests for an evidentiary hearing to be held on this issue per Family Code section 217.

Ms. Vandyk argues that this Court correctly denied Petitioner’s grievance lodged as untimely and that per Rule 9.14(I)(1)(f), that decision was final.

Respondent opposes on the same basis as Ms. Vandyk, and also adds that the correct avenue to appeal the Court’s ruling would be a writ of mandate because a separately filed request for order neither cures the defect nor gives her a right to an evidentiary hearing after the grievances have been denied by the Court. Respondent further claims that Ms. Vandyk never provided any proof of service to support that she served Minor’s counsel with grievances on July 14, 2023.

Both Ms. Vandyk and Respondent have submitted late reply briefs to reaffirm their positions on September 25, 2023.

Application

There is a local rule, rule 9.14, in place that affords a process through which Petitioner may bring a grievance to minor’s counsel, as long as they are served in writing upon minor’s counsel and filed with the court within the 20-day time allowed. This local rule has the same force as a procedural statute. Petitioner, through a request for order, seeks the removal of Ms. Vandyk as the minors’ counsel. The Court, in its discretion, previously ruled that Petitioner’s grievance was untimely made. The Petitioner, by not seeking review of this court’s denial, has waived her right to seek redress as to the original grievance. A request for order is not the proper procedure for seeking removal of minor’s counsel.

CONCLUSION

Based on the foregoing, the request for order is DENIED.

END OF TENTATIVE RULING