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NO. C071887

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

SUSAN C. FERRIS,
Appellant,

v.

DAVIC M. FERRIS,
Respondent.

On Appeal from the Judgment of the Sacramento Superior Court

Case No. 98FL05615, Hon. Matthew Gary, Judge Presiding

APPELLANT'S OPPOSITION TO RESPONDENT'S

MOTION TO DISMISS

MORRISON & FOERSTER LLP MORRISON & FOERSTER LLP

*JAMES J. BROSNAHAN (SBN 34555) M IRIAM A. VOGEL (SBN 67822)
GEORGE C. HARRIS (SBN 111074) 707 Wilshire Boulevard
Los Angeles, California 90017-3543
SHAEL YN K. DAWSON (SBN 288278)
Telephone: 212.892.5200
425 Market Street
Facsimile: 213.892-5454
San Francisco, California 94105-2482
MVogel@mofo.com
Telephone: 415.268.7000
Facsimile: 415.268.7522
* JBrosnahan@mofo.com

Attorneys for Appellant,

SUSAN C. FERRIS
 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................. . . ............... . . . ........................ 3

INTRODUCTION . . ......................................................................... .............. 5

ARGUMENT ................................................... ............................................. 7

I. THE MOTION TO DISMISS SHOULD BE DENIED

BECAUSE ACCESS TO COUNSEL IN A CHILD
CUSTODY CASE WHERE CONSTITUTIONAL
RIGHTS ARE AT STAKE IS AN ISSUE OF
CONTINUING PUBLIC IMPORTANCE ......................................... 7

II. THIS CASE IS NOT MOOT BECAUSE

APPELLANT CAN STILL BE GRANTED
EFFECTUAL RELIEF . . ........ .................................... ................. ...... 10

Ill. ANY TECHNICAL MOOTNESS IN THIS CASE

RESULTS FROM THIS COURT'S BACKLOG, NOT
ANYTHING THE PARTIES DID OR DIDN'T DO,
AND IT WOULD THEREFORE BE GROSSLY
UNFAIR TO REFUSE TO HEAR AND
DETERMINE THE MERITS OF MS. FERRIS'S
APPEAL . ........................................... ............................. . . ... . ... ......... 11

CONCLUSION ................................. . . . . . . . . ... ............... . . . . .. . . . ....................... 12

CERTIFICATE OF COMPLIANCE .......................................................... 13

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG

 TABLE OF AUTHORITIES

Page(s)

CASES

American Academy of Pediatrics v. Lungren

(1997) 16 Cal.4th 307 .............................................................................. 9

Appellate Defenders, Inc. v. Cheri S.

(1995) 35 Cal.App.4th 1819 .................................................................... 8

County of Fresno v. Shelton

(1998) 66 Cal.App.4th 996, as modified (Sept. 22, 1998) ......... . ..... ... 7, 12

In re B. G.
(1974) 11 Cal.3d 679 ............................................................................... 7

In re Emilye A.
(1992) 9 Cal.App.4th 1695 ...................................................................... 7

In reJacqueline H
(1978) 21 Cal.3d 170 ............................................................................... 8

In reJay R.
(1983) 150 Cal.App.3d 251 ..................................................................... 8

In re Marriage of LaMusga
(2004) 32 Cal.4th 1072 ............................................................................ 7

In re Sade C.
(1996) 13 Cal.4th 952 .. .... .. . ......... . ...
. ......... ... ..
. ........... ... .
.... .. ....... . ... : ....... 9

Salas v. Cortez
(1979) 24 Cal.3d 22 ...... . .... ... .... ..... .. .
. . ... ... . ..
. ... ......... . .............. ..... . . ..... 7, 9
.

STATUES & REGULATIONS

Family Code
Section 7862............................................................................................. 8
Section 7895.............................................................................................. 8

Welfare & Institutions Code

Section 317 ............................................................................................... 8
Section 16000 .................................. :........................................................ 8

3
RULES

California Rules of Court, Rule 8.403 ........... ................................... .......... 8

OTHER AUTHORITIES

American Bar Association, ABA Resolution Supports Creation of

Right to Counsel in High Stakes Civil Cases (2006)
<https://www .brennancenter.org/analysis/aba-resolution-
supports-creation-right-counsel-high-stakes-civil-cases> ............. ........ 10

Branan, State Considers Providing Lawyersfor High Stakes Civil

Disputes, Sacramento Bee (Mar. 26, 2014)
<http://www.sacbee.com/news/local/article2593 8 13 .html#storyli
nk=cpy> ................. .............................. ................... ; ......... .................. 9-10

Judicial Council of California, 2015 Court Statistics Report;

Statewide Caseload Trends 2004-2005 through 2013 -2014
<http://www.courts.ca.govIdocuments/20 15-Court-Statistics-
Report. pdt>, last accessed on Mar. 14, 2016 ......................................... 1 1

Judicial Council of California, May I

Help You? Legal Advice v.
Legal Information: A Resource Guidefor Court Clerks 8 (2003 )
<http://www .courts.ca.gov/documents/mayihelpyou.pdt> ...................... 9

4
 INTRODUCTION

This appeal presents important constitutional issues concerning the

fundamental right of indigent parents to counsel in child custody

proceedings.

Although Respondent David Ferris (the father) was represented by

counsel, the trial court denied the request for counsel by Appellant Susan

Ferris (the mother), who is disabled. The court then terminated Ms.

Ferris's parental rights and entered an order prohibiting her from having

any contact with her then 14-year-old daughter, M. This appeal challenges

that deprivation of parental rights without the assistance of counsel as a

violation of due process and federal and state laws protecting the rights of

the disabled.

The appeal was fully briefed in December 2013 , at which time M

was 16 y ears old. No date has yet been set for oral argument. Respondent

now moves to dismiss the appeal as moot because M recently turned 18, the

age of majority.

On July 23 , 2015, Ms. Ferris's attorney alerted this Court to the

potential mootness issue given M's approaching birthday and urged the

Court to set a date for oral argument. There was no response from the

Court, and no oral argument date was set.

On February 2, 2016, Mr. Ferris filed a motion to dismiss the appeal

as moot on the ground that M had turned 18 in September 20 15. Although

this Court initially granted the motion and dismissed the appeal, that order

was vacated when the Court was advised that Ms. Ferris's counsel had not

received notice of the motion. Ms. Ferris submits that, for the following

5
reasons, it would be a grave injustice to dismiss this appeal without

considering its merits.

First, the appeal raises issues of continuing public importance

concerning the deprivation of an unrepresented parent's rights of custody

and visitation. Ms. Ferris's position in this appeal is that the nature of these

proceedings requires the appointment of counsel for indigent parents. This

is obviously a recurring issue, and one which by its nature may become

moot before it is finally resolved by our judicial system-meaning that a

dismissal in this case is tantamount to a decision that the issue can never be

presented for appellate review.

Second, by denying Ms. Ferris's right to any contact with her

daughter, the trial court effectively found that Ms. Ferris was (and is) an

unfit mother. That finding is not mooted by the child's age, and Ms. Ferris

is entitled to pursue the appeal challenging that finding.

Third, the delay resulting in any mootness of the issues is through no

.
fault of either party. It is the geographical location of this litigation

within the Third Appellate District-that has resulted in a fully briefed

appeal languishing for more than two years. As noted below, an appeal that

was fully briefed in December 2013 in other districts would have been

heard and decided before M turned 18. Ms. Ferris should not be deprived

of appellate review simply because of this Court's unfortunate backlog.

6
 ARGUMENT

I. THE MOTION TO DISMISS SHOULD BE DENIED

BECAUSE ACCESS TO COUNSEL IN A CHILD
CUSTODY CASE WHERE CONSTITUTIONAL
RIGHTS ARE AT STAKE IS AN ISSUE OF
CONTINIDNG PUBLIC IMPORTANCE.

Because M has turned 18, this Court's decision in this case will no

longer affect Ms. Ferris's custody and contact rights. But other mothers

and fathers can and will be affected by this Court's decision.

Because this appeal raises '"issues of continuing public

importance,"' this Court has discretion to decide this appeal even if

otherwise moot. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1086

[deciding custody issue despite asserted mootness], quoting Lundquist v.

Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8; see also County of Fresno v.

Shelton (1998) 66 Cal.App.4th 996, 1005-1006 ["We believe this issue is

one of significant and continuing public interest that is likely to recur. It is

also one which has yet to be addressed in any published decision in this

state. We therefore invoke the exception to the mootness doctrine and

proceed to decide the issue on its merits."], as modified (Sept. 22, 1998).)

California courts have held that "the interest in maintaining a parent

child [is] 'a compelling one, ranked among the most basic of civil rights."'

(Salas v. Cortez (1979) 24 Cal.3d 22, 28, quoting In re B. G. (1974) 11

Cal.3d 679, 688-689.) A "parent's interest in maintaining a normal parent

child relationship is an extremely important interest," and any proceeding

"which seriously infringes on the parent's ability to parent a child for a

substantial period of time . . . seriously implicates that same important

interest." (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1708.)

7
 By the same token, California's courts have recognized that-apart

from the emotional impact and resulting difficulty of participating as an

advocate in proceedings that threaten fundamental parental rights-few

parents are capable of performing the essential advocacy functions that a

hearing affecting parental rights requires. (See In re Jay R. (1983) 150

Cal.App.3 d 251, 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."].)

After the Supreme Court recognized in In re Jacqueline H (1978) 21

Cal.3 d 170, that a parent has the right to counsel in an appeal from a

dependency court's termination of her parental rights, the legislature

explicitly codified that ruling. (Fam. Code, 7895; Appellate Defenders,

Inc. v. Cheri S. (1995) 3 5 Cal.App.4th 1819.)

Other California statutes, recognizing the compelling public interest

in providing the assistance of counsel in such proceedings, expressly

provide for the appointment of counsel to parents and children when

custody is at issue. (E.g., Fam. Code, 7862 [right to counsel in

termination proceedings]; Welf. & Inst. Code, 3 17 [right to counsel in

dependency proceedings where a parent might be deprived of temporary

custody]; Cal. Rules of Court, Rule 8.403 [right to counsel for appeal of

judgments in juvenile court dependency proceedings]; Welf. & Inst. Code,

16000 ["it is the intent of the legislature to preserve and strengthen a

child's family ties whenever possible"].)

The State's interest in the welfare of its children aligns with a

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

management of the child. Our Supreme Court has stated that

"[a]ppointment of counsel [to a parent who lacks counsel] will not only

8
advance substantial state interests, it should serve the child's interest as

well." (Salas, supra, 24 Cal.3d at p. 3 3 .)

The public and the State have an "urgent," "important," and

"compelling" interest in making sure there is an accurate determination of

parental rights. (In re Sade C. (1996) 13 Cal.4th 952, 989; American

Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 3 07, 3 42.) When the

Supreme Court held that an indigent man defending against allegations of

paternity has a right to counsel, 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.3 d at p. 3 3 .) Indeed,

the 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 C.,
supra, 13 Cal.4th at p. 959, fn. 1.)

The need for counsel in family law proceedings, and particularly

custody proceedings, has been widely recognized as a matter of public

importance. The Judicial Council of California has stated that "[i]t is the

policy of the California courts to encourage litigants to use lawyers

because court cases often involve legal issues beyond the understanding of
the ordinary person." (Judicial Council of California, May I Help You?
Legal Advice v. Legal Iriformation: A Resource Guide for Court Clerks 8

(2003 ) <http://www .courts.ca.gov/documents/mayihelpyou.pd:f>, italics

1
added.)

1 A 2009 California study demonstrates the importance of representation by

counsel. Whereas 92 percent of cases in which both parents had attorneys
resulted in joint custody, cases in which only one parent had an attorney
resulted in an award of joint custody only 77 percent of the time, and the
parent without an attorney was more likely to lose. (See Branan, State

9
 The importance of the right to counsel in child custody proceedings

has also been recognized nationally. On August 8, 2006, the House of

Delegates of the American Bar Association unanimously passed the

following Resolution: "RESOLVED, That the American Bar Association

urges federal, state, and territorial governments to provide legal counsel as

a matter of right at public expense to low income persons in those
categories of adversarial proceedings where basic human needs are at
stake, such as those involving shelter, sustenance, safety, health or child
custody as determined by each jurisdiction." (American Bar Association,

ABA Resolution Supports Creation of Right to Counsel in High Stakes

Civil Cases (2006) <https://www .brennancenter.org/analysis/aba-

resolution-supports-creation-right-counsel-high-stakes-civil-cases>.)

II. THIS CASE IS NOT MOOT, BECAUSE APPELLANT

CAN STILL BE GRANTED EFFECTUAL RELIEF.

The Court cannot grant relief that will restore custody and contact

rights to Ms. Ferris now that M is no longer a minor. However, the trial

court's judgment, which amounted to a finding that Ms. Ferris was (and is)

an unfit mother who should have no contact with her daughter, is a public

record that creates a continuing stigma that will follow Ms. Ferris the rest

of her life, and could impact her in future applications and proceedings.

This Court could remove that stigma and the potential for any resulting

adverse effect of the trial court's decision if it reverses that decision

because it was obtained in violation of due process and/or in disregard of

the rights of the disabled.

Considers Providing Lawyers for High Stakes Civil Disputes, Sacramento

Bee (Mar. 26, 2014) <http://www.sacbee.com/news/local/
article2593 813 .html#storylink=cpy>.)

10
 III. ANY TECHNICAL MOOTNESS IN THIS CASE
RESULTS FROMTIDS COURT'S BACKLOG, NOT
FROM ANYTHING THE PARTIES DID OR DID NOT
DO, AND IT WOULD THEREFORE BE GROSSLY
UNFAIR TO REFUSE TO HEAR AND DETERMINE
THE MERITS OF MS. FERRIS'S APPEAL.

As noted at the outset, this appeal was fully briefed in December

2013, when M was 16 years old. In other appellate districts in California,

oral argument would have been scheduled within a year-indeed, in the

Second Appellate District, for example, argument likely would have been

held within a few months. (See Judicial Council of California, 2015 Court

Statistics Report; Statewide Caseload Trends 2004-2005 through 2013 -

20 14, pp. 20, <http://www. courts.ca.gov/documents/20 15-Court-Statistics

Report.pdf>, last accessed on Mar. 14, 2016 [showing ratios that provide an

"estimate of the time a court needs to dispose of pending fully briefed

appeals"].) It takes far longer to get an oral argument date in the Third

Appellate District. (Id. at p. 22 [noting that the Third District "reported the

highest number of pending fully briefed appeals," which was "35% higher

than the statewide average"].) Geography within the State and a particular

court's backlog should not determine whether an appeal is or is not

dismissed as moot. That would be grossly unfair and unjust.

Moreover, given the common and recurring nature of the issues

presented by this appeal, deciding it on the merits will avoid a similar result

in other cases. Other cases presenting the same issues are likely to take a

similar amount of time to reach final decision in this district, with the same

potential for deprivation of rights and ultimate mootness while the case is

pending. Moreover, given that it has been fully briefed and under

consideration for more than two years, proceeding to decision of this case

on the merits will conserve rather than expend judicial resources.

11

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG

 CONCLUSION

For all of these reasons, Ms. Ferris submits that the motion to

dismiss the appeal as moot should be denied, and the appeal should be
2
promptly set for oral argument.

Dated: March 15, 2016 Respectfully submitted,

MORRISON & FOERSTER LLP MORRISON & FOERSTER LLP

*JAMES J. BROSNAHAN (SBN 3 4555) MIRIAM A. VOGEL (SBN 67822)
GEORGE C. HARRIS (SBN 111074) 707 Wilshire Boulevard
Los Angeles, California 90017-3543
SHAELYN K. DAWSON (SBN 288278)
Telephone: 212.892.5200
425 Market Street
Facsimile: 213.892-5454
San Francisco, California 94105-2482
MVogel@mofo.com
Telephone: 415.268.7000
Facsimile: 415.268.7522
* JBrosnahan@mofo.com

By: Isl James J. Brosnahan

James J. Brosnahan

Attorneys for Appellant

SUSAN C. FERRIS

2
In the alternative, even if the Court decides not to resolve the right to
counsel issue on the merits because of mootness, the judgment below
should be reversed. "[I]nvoluntary dismissal of an appeal operates as an
affirrnance of the judgment below." (County of Fresno, szpra, 66
Cal.App.4th at p. 1005.) However, "[i)f the appellate court wishes to avoid
this result (for example, when the trial court granted relief that is rendered
improper due to the mootness of the action), it can do so by reversing the
judgment solely for the purpose of restoring the matter to the jurisdiction of
the superior court with directions for that court to dismiss the action."
(Ibid., citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134.) That
would be the appropriate result here, where mootness was not caused by the
parties but only by the court's backlog, and where the trial court's order and
:findings create a continuing stigma that could affect Ms. Ferris in future
proceedings or applications.

12
 CERTIFICATE OF COMPLIANCE

Pursuant to rule 8.204(c) 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 this brief was produced using a 13 point font

and contains 2, 118 words.

Dated:. March 15, 2016 Isl James J. Brosnahan

James J. Brosnahan

sf-3633308

13