Leslie O. v. Superior Court
180 Cal. Rptr. 3d 863
Cal. Ct. App.2014Background
- Leslie O. and Thomas O. are parties in a contested marital dissolution over custody of their child Wyatt, who has developmental delays and special needs.
- Ann M. Convertino, LCSW, was appointed child custody evaluator and issued an evaluation that repeatedly referenced Leslie’s mental health and raised (via collateral sources) the specter of Munchausen-by-proxy.
- Leslie shared the confidential evaluation with three treating clinicians (her therapist and two physicians), who protested that Convertino misquoted or mischaracterized their information and that relevant facts suggested Thomas’s negligence, not Leslie’s pathology, explained Wyatt’s injuries.
- Convertino exchanged multiple emails with Leslie’s therapist, the parties’ attorneys, and extensively with Thomas (including communications after her initial evaluation was complete), at times appearing defensive, dismissive of exculpatory information, and solicitous of Thomas.
- Leslie moved to remove Convertino and strike the reports for evaluator bias and improper ex parte communications; the trial court denied the motion. The Court of Appeal granted mandamus, holding Convertino demonstrated bias and must be disqualified and her reports struck.
Issues
| Issue | Plaintiff's Argument (Leslie) | Defendant's Argument (Thomas/Respondent) | Held |
|---|---|---|---|
| Whether evaluator exhibited bias requiring removal and striking of reports | Convertino’s emails, selective reporting, failure to solicit or credit key treating clinicians, and ex parte sympathy/assistance to Thomas show actual bias and stepping outside evaluator role | Trial court found evidence insufficient; Thomas argued Adams decision is distinguishable / insufficiently egregious here | Court of Appeal: considering totality of circumstances, Convertino’s conduct and communications demonstrated actual bias; removal and striking required |
| Whether Convertino’s communications with Thomas (and attorneys) were improper ex parte or beyond evaluator role | The February 2013 emails with Thomas (after initial report) and the November email to Thomas’s attorney (not copied to Leslie’s counsel) were unauthorized, advantaged Thomas, and risked contaminating any supplemental report | Thomas argued communications were less serious or distinguishable from precedent; trial court declined to disqualify | Court held communications showed Convertino stepped beyond permitted evaluator duties and aided Thomas, supporting disqualification |
| Whether evaluator properly corrected report after clinicians complained | Leslie: Convertino refused to meaningfully correct substantive errors and instead submitted limited addenda; this showed lack of objectivity | Convertino asserted she could not change what had been submitted to attorneys and made permissible clarifications/addenda | Court held that timely substantive correction was appropriate and Convertino’s refusal (while making other non-substantive revisions) indicated bias and failure to gather balanced information |
| Standard of review for removal motion | Leslie: facts undisputed; legal determination of bias reviewed de novo (or at least not reversed) | Respondent: trial court’s discretion should be respected | Court applied precedent (Adams) and concluded whether bias existed may be reviewed de novo on undisputed facts and here removal was required |
Key Cases Cited
- In re Marriage of Adams & Jack A., 209 Cal.App.4th 1543 (Cal. Ct. App. 2012) (discusses standard for review and removal of child custody evaluators for bias)
- Brown, Winfield & Canzoneri, Inc. v. Superior Court, 47 Cal.4th 1233 (Cal. 2010) (mandamus may issue in first instance in appropriate circumstances)
- Lewis v. Superior Court, 19 Cal.4th 1232 (Cal. 1999) (mandamus principles)
- Alexander v. Superior Court, 5 Cal.4th 1218 (Cal. 1993) (mandamus principles)
- Ng v. Superior Court, 4 Cal.4th 29 (Cal. 1992) (mandamus principles)
- Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (Cal. 1984) (procedural guidance on issuing writs without alternative writ)
- Ramona v. Superior Court, 57 Cal.App.4th 107 (Cal. Ct. App. 1997) (explaining Munchausen-by-proxy concept and its gravity)