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NO.

C071887
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

IN RE THE MARRIAGE OF
DAVID M. FERRIS AND SUSAN C. FERRIS
DAVID M. FERRIS,
Respondent,
v.
SUSAN C. FERRIS,
Appellant.


Appeal From the Sacramento Superior Court
Case No. 98FL05615

Hon. Matthew Gary, J udge Presiding
________________________________________
APPELLANTS REPLY BRIEF
________________________________________


J AMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)
KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)
DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF
ANDREW BERNICK (SBN 276115) NORTHERN CALIFORNIA
MORRISON & FOERSTER LLP 515 12th Street
425 Market Street Sacramento, CA 95814
San Francisco, CA 94105-2482 Tel: 916.551.2150
Tel: 415.268.7000 Fax: 916.551.2195
Fax: 415.268.7522 bkennedy@lsnc.net
J Brosnahan@mofo.com


Attorneys for Appellant
SUSAN C. FERRIS

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TABLE OF CONTENTS
Page


TABLE OF AUTHORITIES ........................................................................ ii
INTRODUCTION ........................................................................................ 1
LEGAL ARGUMENT ................................................................................. 2
I. SUSAN REQUESTED COUNSEL .................................................. 2
II. APPOINTING COUNSEL FOR SUSAN WOULD HAVE
MADE A SIGNIFICANT DIFFERENCE IN THE
PROCEEDINGS BELOW ................................................................ 3
III. DAVID DOES NOT DISPUTE SUSANS RIGHT TO
COUNSEL ....................................................................................... 10
IV. FEDERAL AND STATE LAWS PROTECTING PERSONS
WITH DISABILITIES GAVE SUSAN A RIGHT TO
COUNSEL IN THIS CASE ............................................................ 12
V. IT IS UNDISPUTED THAT THE TRIAL COURT ERRED
BY IMPOSING THE $2,500 SANCTION ..................................... 12
CONCLUSION .......................................................................................... 13



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TABLE OF AUTHORITIES
Page(s)
CASES
Biscaro v. Stern
(2010) 181 Cal.App.4th 702 .................................................................. 4
Chapman v. California
(1967) 386 U.S. 18 ................................................................................. 4
Franco-Gonzalez v. Holder
(C.D. Cal. 2013) 2013 WL 3674492 ................................................... 12
In re Emilye A.
(1992) 9 Cal.App.4th 1695 ............................................................ 10, 11
In re James F.
(2008) 42 Cal.4th 901 .................................................................... 4, 5, 6
In re Jay R.
(1983) 150 Cal.App.3d 251 ................................................................ 11
In re Malinda S.
(1990) 51 Cal.3d 368 ..................................................................... 10, 11
In re Marriage of Petropoulos
(2001) 91 Cal.App.4th 161 .................................................................. 12
In re Sade
(1996) 13 Cal.4th 952 .......................................................................... 11
Payne v. Superior Court
(1976) 17 Cal.3d. 908 .......................................................................... 11
People v. Allen
(2008) 44 Cal.4th 843 .......................................................................... 10
Salas v. Cortez
(1979) 24 Cal.3d 22 ................................................................. 10, 11, 12
United States v. Gonzalez-Lopez
(2006) 548 U.S. 140 ............................................................................... 4
TABLE OF AUTHORITIES
(continued)
Page(s)

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CONSTITUTION AND STATUTES
Cal. Const. art. I, 7 .................................................................................. 10
California Family Code
271 ..................................................................................................... 12
3020 ........................................................................................... 7, 9, 11
3030 ..................................................................................................... 7
3040 ............................................................................................. 11, 12
3048 ..................................................................................................... 6
3060. .................................................................................................... 6
3063 ..................................................................................................... 6
California Welfare & Institutions Code
16000 ................................................................................................. 11
OTHER AUTHORITIES
Mnookin, Maccoby, Albiston & Depner, What Custodial
Arrangements are Parents Negotiating? , Divorce Reform at the
Crossroads (S. Sugarman edits. 1990) ................................................... 9

1

INTRODUCTION
A parents interest in the companionship, care, and custody of his or
her children is compelling, fundamental, and among the most basic of civil
rights. It is an interest worthy of serious protection.
Here, the trial courts order has deprived Susan, a disabled and
indigent mother, of contact with her teenage daughter (M) for years. This
deprivation occurred in proceedings in which an unrepresented, disabled,
and indigent mother was pitted against experienced counsel advocating for
Ms father, David. As a result, the information presented to the trial court
was skewed and the unrepresented mother was placed at a decisive
disadvantage. The real question in the case whether it was in the best
interest of the child to lose all contact with her mother went unasked and
unanswered.
Davids brief does not say a single word about the serious
constitutional issues raised in Susans opening brief. Instead, David makes
two arguments. First, he says Susan did not request counsel. The record
proves this claim is false.
Second, David says counsel would not have made a difference.
David ignores that a failure to appoint counsel is structural error that
requires reversal without further review. David also ignores the numerous
ways that counsel for the disabled and indigent mother would have made a
difference here.
Susan was deprived of her parental rights in proceedings in which
she was unable to meaningfully present her case due to her disability and
lack of counsel. The Court should reverse the orders below and remand
this case for further proceedings after counsel is appointed for Susan.

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LEGAL ARGUMENT
I. SUSAN REQUESTED COUNSEL
Davids contention that Susan did not request counsel is false. (RB
1.) As Susan established in her opening brief, she repeatedly and explicitly
requested an attorney. (AOB 7, 8-9, 34.)
Immediately after she was deprived of contact with her daughter,
Susan requested an attorney and went so far as suggesting that the trial
court hold her in contempt of court in an effort to obtain appointed counsel.
(RT 131-132, 137, 143-144.) During the December 15, 2011 hearing
the same hearing from which David selectively quotes Susan clearly
stated on the record: I do want an attorney. (RT 132.) Susan repeated
her request at the end of that hearing, asking: may I have an attorney?
(RT 144.) Even before she was deprived of contact with her daughter,
Susan had also made it clear that she was having trouble because she was
not represented by counsel, explaining to the trial court that when you
dont have an attorney . . . the chances of having a fair trial, in my
experience, are less. (RT 81.)
David contends that Susan expressly stated she wanted to represent
herself. (RB 2.) This is not accurate. Susans statement that I do have a
right . . . to represent myself was in the context of explaining to the trial
court that she should be allowed to speak during that hearing (because she
had no attorney to speak for her), and was not a statement that she did not
wish to be represented by counsel. In fact, this statement was made during
the same hearing in which Susan made two separate requests for a lawyer.
(RT 132, 144.)

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Susan began the relevant exchange in attempting to respond to the
trial courts statement that M was somewhere in the underground. She
said Can I -- and was cut off by the judge. (RT 128.) Susan then stated,
I do have the right to speak, and I dont know what is legal. (RT 128,
italics added.) The trial court responded: hold on a second. And then:
You do have the right to speak. Well sort of you have the right to speak.
(RT 128.)
It was only after this exchange that Susan referenced a right to
represent herself. (RT 129.) A short time later, Susan further indicated
that what she wanted was a chance to speak, when she stated: I would like
to speak when it is my turn. (RT 130.)
This exchange demonstrates Susans difficulty in presenting her case
without an attorney. It does not indicate a preference to represent herself
instead of having an attorney, only a desire to speak for herself when she
did not have counsel. Susan was fighting to preserve her relationship with
her child and was forced to fight simultaneously for her right to present her
case to the court. These rights would have been more ably vindicated if
Susan had an attorney.
II. APPOINTING COUNSEL FOR SUSAN WOULD HAVE
MADE A SIGNIFICANT DIFFERENCE IN THE
PROCEEDINGS BELOW
David contends that counsel for Susan would have made no
difference in the proceedings below. (RB 3.) There are at least two reasons
for rejecting this argument.
First, David ignores the rule that when a trial court wrongfully
denies assistance of counsel to an unrepresented party, the error is a
structural error infecting a legal proceedings reliability and calls for

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reversal per se. (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 704; AOB
12-13.) Both the California Supreme Court and the United States Supreme
Court have recognized that the deprivation of a constitutionally protected
right to counsel is the type of error that can never be harmless. (In re
James F. (2008) 42 Cal.4th 901, 914; Chapman v. California (1967) 386
U.S. 18, 23 & fn. 8 [listing right to counsel among constitutional rights so
basic to a fair trial that their infraction can never be treated as harmless];
United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [erroneous
deprivation of counsel of choice unquestionably qualifies as structural
error].)
Although David contends that counsel would have made absolutely
no difference (RB at 3), our courts have relieved parties deprived of
counsel of the need to show specific prejudice, and thus disposed of the
argument David attempts to advance on this appeal. This is a pragmatic
approach, recognizing that a record established by a self-represented party
cannot suffice to show what might have been different had the party been
represented by counsel.
Here, it would be impossible for David, or anybody, to ascertain
what arguments and evidence may have been developed in this case by an
attorney and what the effect would have been on the outcome of these
hearings. (AOB 24-27.) Because the error prevents this Court from
ascertaining what might have happened absent the error, the orders below
are reversible per se without a showing of prejudice. (Biscaro, supra,
181 Cal.App.4th at p. 704.)
Second, to the extent this Court might consider the difference
appointed counsel could have made in this case, the record shows the
failure to appoint counsel was not harmless under any potentially applicable

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standard.
1
David ignores, rather than disputes, the concrete measures
outlined in Susans opening brief to demonstrate how counsel could have
made a difference in this case. (AOB 24-27.)
One way to gauge the potential impact of counsel for Susan is to
consider what Davids lawyer did in these proceedings. David was
represented by counsel throughout these proceedings. (CT 111-113, 116,
117, 212.) His lawyer significantly impacted the course of the proceedings
by submitting motions, calling and effectively questioning witnesses (RT
28-29, 35-36, 39, 42, 174), presenting evidence (RT 10, 54, 70-71, 79, 81,
96), and on numerous occasions providing legal advocacy for his clients
position, such as by examining witnesses under oath and asking for
information and evidence from Susan (RT 22, 43, 47, 61, 64, 90, 117, 119,
137), and by arguing that Susan had orchestrated Ms disappearance (RT
11, 174). Davids lawyer successfully objected to the examination of Ms
cell phone (RT 50, 62) and to Susans characterization of the out-of-state
lock-down facility where M had been forcibly taken. (RT 167, 171.)
Counsel for Susan could have opposed these motions, cross-
examined these witnesses, tested this evidence, and countered opposing
counsels arguments. There were numerous opportunities for an attorney to
present witnesses, evidence, and argument on Susans behalf. Susan
missed these opportunities by virtue of the complexity of the law, her
disability, and the emotional stress involved with potentially losing contact
with her daughter. (AOB 11-12, 24-27.) Without the assistance of counsel,

1
The California Supreme Court has not determined the appropriate
harmless error standard for constitutional errors in civil cases that do not
rise to the level of structural error, but has suggested that such errors would
require reversal unless the error was either harmless beyond a reasonable

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Susan was unable to successfully juggle the roles of mother, advocate, and
witness.
Susan opposed Davids sending M out of state, but at the May 9,
2012 hearing on the subject, Susan was unable to provide case law,
statutory law, or admissible facts to explain why David should be
prohibited from sending M out of state. (RT 166, 174.) An attorney
representing Susan could have argued that because the custody order was
only a temporary order, the trial court was required to enter an order
restraining the person receiving custody from removing the child from the
state pending notice and a hearing on the order seeking or modifying
custody. (Cal. Fam. Code 3063.)
2
Although Susan orally requested a
change to the custody orders, permitting her to regain contact and custody
with her daughter (RT 168), she did not submit a motion or present any
legal argument, testimony, or evidence in support of her request to regain
custody of M or contact with M. (Ibid.) An attorney could have made a
written motion to change the temporary custody order and presented
testimony and evidence to bolster its chances of success. Either of these
measures could have made a significant difference in the proceedings
below regarding whether David was permitted to send M out of state and
whether the order prohibiting contact between Susan and M should remain
in effect.

doubt or at least harmless by clear and convincing evidence. (In re
James F., supra, 42 Cal.4th at p. 911, fn. 1.)
2
Under Family Code Section 3060 et seq., the no-contact and
custody orders entered by the trial court were ex parte temporary custody
orders because they were temporary orders setting custody which were
ordered in the absence of an agreement between Susan and David
regarding custody. No final orders modifying custody have been entered.
(See Cal. Fam. Code 3048 [requiring that final custody orders comply
with certain form and notice requirements].)

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The relationship between a mother and her daughter is worth
protecting. It is Californias public policy . . . to assure children have
frequent and continuing contact with both parents. (Cal. Fam. Code
3020 (b).) This policy is so strong that California has a special statute
regarding the circumstances when a parent convicted of first degree murder
of the other parent will still be permitted to have unsupervised contact with
his or her child. (Cal. Fam. Code 3030 (c).)
An attorney could have presented evidence explaining Susans
relationship with her daughter, which would have shown that depriving
Susan of all contact with M is not in Ms best interests. An attorney
advocating continuing contact could have asked: Who are Ms friends?
Did M ever ask you for advice on how to handle friendships? Did M ever
ask you for advice on how to handle other relationships? Do you cook for
your daughter? What is her favorite food? Does she help you cook? What
does she like to eat on her birthday? What else do you do with M on her
birthday? How does M do with her schoolwork? Do you help her with
school work? What did you tell her? What kind of television did you
watch with M? What were her favorite shows? What games did M like to
play? How did you take care of M when she was sick? What made her feel
better? Without the benefit of this kind of testimony, the trial court was
unable to make an informed decision about the harm that would result from
preventing contact between M, a teenage girl, and her mother.
An attorney acting as Susans advocate could have called David as a
witness. While opposing counsel found it advantageous to call Susan as a
witness (RT 174), Susan never called David as a witness. Counsel
representing Susan could have asked numerous questions to David to help
the trial court determine where M was staying and why she had left her
fathers house, for example: J ust a moment ago, you stated that it was a

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possibility that M was with your brother. (RT 77.) Why? Have you
heard from your brother? What did he say? Counsel could have helped
shed light on Ms disappearance, asking: Can you think of why M might
have run away? When M told you that she had gone to a friends house
and that she did not want to come home that evening because you had
been emotionally abusive to her, what was your reaction? (CT 93.)
When you went to pick up M from the friends house and you told Ms.
Miller that things would not be easy for [M] now what did you mean?
(CT 102.) How long did you sleep in the same bed with M? (CT 30-34.)
Do you think this was appropriate? Did M ever express discomfort with
the situation? You say that when you had your hand down your pants while
you were watching television in the bed that you shared for five months
with your teenage daughter it was because you had jock-itch? (CT 33-34.)
Did you ever get a prescription for this jock itch? Have you smoked
marijuana in front of your daughter? (CT 64.) Did you throw a table that
M was seated at? (Ibid.) Why?
An attorney representing Susan also could have called other
witnesses to testify about Ms best interests Susan did not call any
witnesses. These witnesses could have included Mr. Price, the academic
counselor at Ms school, to speak about whether Ms recent poor academic
performance was the result of what was taking place at the fathers home.
(CT 36-37.) The attorney could have called Ms. Miller, a family friend
with whom M had visited before running away, asking: Did M appear
upset when she arrived at your house? Was she sobbing? (CT 99.) Did
she tell you why she was upset? Did she say she would never go back to
live with her father? (Ibid.) Do you know why she ran away? Where did
you think M might have run away to? Did she mention whether she might
stay with her uncle? Did she say her father was emotionally abusive?

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(CT 93.) How? Did David call you when M stayed with you? (CT 99.)
What did he say? Did he appear angry? Did you think M was safe with
David?
If (as the trial court suspected) Susan knew where M was (RT 89,
90), an attorney might have shown that David also knew where M was (RT
77) and that Susans motivations were to further Ms best interests.
3
An
attorney could have shown the trial court the clear fact that Susan loved her
daughter, that M loved her mother, and, regardless of anything else, this
was a relationship worth preserving. (See Cal. Fam. Code 3020 (b)
[establishing Californias public policy in favor of continuing contact with
both parents].)
Studies show that the absence of counsel significantly affects the
outcomes of child custody cases. (Mnookin, Maccoby, Albiston & Depner,
What Custodial Arrangements are Parents Negotiating?, Divorce Reform at
the Crossroads, p. 64 (S. Sugarman and H. Kay edits. 1990) [finding that
unrepresented parents were less likely to win custody when they faced
represented parents]; AOB 21-22, 21 fn. 7, [collecting studies
demonstrating counsels effect on the outcomes of civil cases].) The

3
David contends that the court made a finding regarding Susans
involvement in her daughters disappearance, and that legal representation
would not have altered what had had become painfully apparent about Ms
whereabouts. (RB 3.) The trial court mentioned a finding in the
following exchange: And isnt the reason Mr. Ferris has sole legal
custody and sole physical custody with a no-contact order from you
because you assisted the child into the underground, and the child
disappeared? . . . Wasnt that the finding I made, though? (RT 168, 169.)
The trial court, however, never made a formal finding regarding any
involvement by Susan in her daughters disappearance. (CT at 111-118,
212.) Nor did the trial court make a formal finding regarding Ms
whereabouts during her absence. (Ibid.)

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assistance of counsel makes a difference in these types of cases and it
would have made a difference in this case.
III. DAVID DOES NOT DISPUTE SUSANS RIGHT TO
COUNSEL
David does not dispute any aspect of Susans argument that she had
a right to counsel under the due process clause of the California
Constitution. Nor does he challenge Susans assertion that her fundamental
liberty interest in the custody, contact, and care for M is protected by due
process, which applies when the state deprives a citizen of a significant
liberty interest. (Cal. Const. art. I, 7(a); People v. Allen (2008) 44 Cal.4th
843, 862.) David does not dispute that the interest of a parent in the
custody and contact with her child is such an interest. (Salas v. Cortez
(1979) 24 Cal.3d 22, 28; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707
[noting that where the possibility of a loss of custody or prolonged
separation from a child exists, due process is implicated].)
Nor does David dispute that the four factors of the due process
balancing test weigh strongly in favor of a constitutional requirement that
counsel must be appointed before the state may deprive a disabled and
indigent parent of contact with his or her children. (In re Malinda S. (1990)
51 Cal.3d 368, 383.) The four relevant factors weigh heavily in favor of a
right to counsel in this case.
First, the interests in maintaining the important relationship between
a parent and child weigh heavily in favor of requiring appointment of
counsel to an indigent and disabled parent before the state may deprive the
parent of contact with her children. (In re Malinda S., supra, 51 Cal.3d at
p. 383.) The parents interest in the custody, care, and contact with her
child is a compelling one, ranked among the most basic of civil rights.

11

(Salas, supra, 24 Cal.3d at p. 28; In re Jay R. (1983) 150 Cal.App.3d 251,
259; In re Sade (1996) 13 Cal.4th 952, 989.)
Second, child custody proceedings have a high risk of erroneous
deprivation when one party is unrepresented. (In re Malinda S., supra, 51
Cal.3d at p. 383.) Courts have recognized that the emotional impact of
participating in proceedings that threaten parental rights hampers a parents
ability to perform the essential advocacy functions such a hearing requires.
(In re Emilye A. supra, 9 Cal.App.4th at p. 1709.)
Third, Susan has a protected dignity in present[ing] [her] side of the
story before a responsible government official that was undermined by her
lack of counsel and her mental disabilities. (In re Malinda S., supra, 51
Cal.3d at p. 383; ACT 1 [explaining that Susans disabilities restrict [her]
in-court comprehension and communication skills]; Payne v. Superior
Court (1976) 17 Cal.3d. 908, 924 [where no other relief will preserve his
right of access to the courts, denial of appointed counsel to an indigent
prisoner in a civil case was impermissible under the California
Constitution].)
Fourth, the States interest weighs in favor of appointment of
counsel because the government has a compelling interest in ensuring an
accurate determination of parental rights. (In re Sade, supra, 13 Cal.4th at
p. 959, fn. 1; Salas, supra, 24 Cal.3d at p.33.) The State also has a strong
interest in the continued relationship between a parent and child. (Cal.
Fam. Code 3020 (b); Cal. Welf. & Inst. Code 16000; Cal. Fam. Code
3040 (a).) In contrast, any state interest in not providing counsel is only
financial. (Salas, supra, 24 Cal.3d at p. 33.)

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IV. FEDERAL AND STATE LAWS PROTECTING PERSONS
WITH DISABILITIES GAVE SUSAN A RIGHT TO
COUNSEL IN THIS CASE
David does not dispute that Susan was entitled to an attorney as an
accommodation for her disability to protect her right to full and equal
access to the benefits of the family court proceedings. The trial court was
aware that Susan has a mental disability that qualifies her as disabled
under state and federal statutes. (AOB 32-33; ACT 3-11.) Susan requested
a reasonable accommodation to address her disability, (RT 81, 144, 172),
yet the trial court did not provide the accommodation of an attorney to help
her meaningfully participate in the proceedings. (See Franco-
Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 at p. *6 [mentally
disabled immigrants facing detention or removal proceedings must be
appointed an attorney to enable them to meaningfully participate in these
proceedings].)
V. IT IS UNDISPUTED THAT THE TRIAL COURT ERRED BY
IMPOSING THE $2,500 SANCTION
By his failure to suggest otherwise (or even mention the point),
David concedes the $2,500 sanction against Susan must be reversed. The
trial court plainly abused its discretion when it imposed a $2,500 sanction
against Susan without considering whether the sanction would constitute an
unreasonable financial burden. (Cal. Fam. Code 271(a); In re Marriage
of Petropoulos (2001) 91 Cal.App.4th 161, 180.)
If the trial court had conducted the required analysis, it could only
have found that such a sanction imposed an undue burden. The trial courts
earlier child support order had left Susan with only $336 per month in
income, (CT 201, 202), and the $2,500 sanction would impose an undue

13

burden on Susan by jeopardizing her ability to afford rent and basic
sustenance.
CONCLUSION
For all the reasons explained in her opening brief and here, Susan
submits that the orders challenged by this appeal should be reversed and the
cause remanded to the trial court with directions to appoint counsel for
Susan and to revisit all of the issues that are the subject of the challenged
orders.
Dated: December 10, 2013

MORRISON & FOERSTER LLP

By:
J AMES J . BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS

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CERTIFICATE OF COMPLIANCE
As required by rule 8.204(c)(1) 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 it was produced using 13 point Roman type and
consists of 3,666 words, including footnotes.




Dated: December 10, 2013

MORRISON & FOERSTER LLP

By:
J AMES J . BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS





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