Petition for Writ of Certiorari — Eric E., Petitioner v. Los Angeles County Department of Children and Family Services

No. 21In the

Supreme Court of the United States

ERIC E.,

Petitioner,

v.

LOS ANGELES COUNTY DEPARTMENT OF

CHILDREN AND FAMILY SERVICES,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of California

PETITION FOR A WRIT OF CERTIORARI

Timothy V. K assouni

Counsel of Record

K assouni Law

455 Capitol Mall, Suite 604

Sacramento CA 95814

(877) 770-7379

timothy@kassounilaw.com

Counsel for Petitioner

311275

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

This Petition for Writ of Certiorari (Petition)

originates from child custody proceedings initiated by

Respondent the Los Angeles County Department of

Children and Family Services (DCFS) against Petitioner

Eric E. (Father), a career military veteran and father

of his son Adam E., who was 16 years old at the time.

After a Court trial, custody was awarded to Adam E.’s

mother over the objection of Father, who had asserted

(among other contentions) his California and Federal

Constitutional right to a jury trial of the factual allegations

against him. The California Court of Appeal dismissed

Father’s appeal as moot in light of the age of Adam E.,

who was approaching adulthood while the appeal was

pending. Appendix (App.) 3a. The California Supreme

Court denied review. App. 1a.

The questions presented are:

1. Whether, under the incorporation doctrine, the

Seventh Amendment right to a jury trial should apply to

the States for parents in quasi-prosecutorial dependency

proceedings, wherein the finder of fact determines

the truth or falsity of allegations which threaten the

deprivation of a fundamental liberty interest in child

custody.

2. Whether, independent of the Seventh Amendment,

the Due Process Clause of the Fourteenth Amendment

requires States to provide parents the right to a jury

trial in quasi-prosecutorial dependency proceedings,

wherein the finder of fact determines the truth or

falsity of allegations which threaten the deprivation of a

fundamental liberty interest in child custody.

ii

LIST OF ALL PARTIES

The Petitioner is Eric. E. The Respondent is the

Los Angeles County Department of Child and Family

Services.

iii

STATEMENT OF RELATED CASES

The proceedings identified below are directly related

to the above-captioned case in this Court.

Los Angeles County Department of Children and

Family Services v. Eric E., Los Angeles County Superior

Court Case No. 18LJJP00620C. Order dated July 31, 2020.

Los Angeles County Department of Children and

Family Services v. Eric E., California Court of Appeal

Case No. B308818. Order dated August 13, 2021.

Los Angeles County Department of Children and

Family Services v. Eric E., California Supreme Court

Case No. S271010. Denial of review dated December 1,

2021.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS AT ISSUE . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 3

B. Procedural Background . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING CERTIORARI . . . . . . . 7

I.

The Seventh Amendment right to a jury

trial is one of the last in the Bill of Rights

to be made applicable to the States . . . . . . . . . . .7

v

Table of Contents

Page

II. Parents have a fundamental Due Process

liber ty interest in child custody, as

recognized by this Court and the Federal

Courts of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. Both the fundamental liberty interest in

child custody and the Seventh Amendment

right to a jury trial are consistent with

ordered liberty and are deeply rooted in the

Nation’s history and tradition . . . . . . . . . . . . . . . 12

IV. Dependency proceedings are quasiprosecutorial, and subject parents to the

jeopardy of inclusion in child abuse data bases

even after the child reaches maturity . . . . . . . . 16

V.

Dependency proceedings are actions at

common law which impact the legal rights

of parents to the custody and care of

their children . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VI. Although Adam E. has now reached the age

of maturity, this action is not moot pursuant

to established exceptions . . . . . . . . . . . . . . . . . . . 21

A. The exception of “collateral consequences”

applies as Father remains in jeopardy of

inclusion in California’s Child Abuse

Central Index, and must report the loss of

custody to potential employers . . . . . . . . . . 22

vi

Table of Contents

Page

B. Judicial review will be perpetually

evaded and denied to a parent when

dependency proceedings are initiated

while the minor child is close to the

age of adulthood . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vii

TABLE OF APPENDICES

Page

A P P E N DI X A — O R D E R D E N Y I N G

REVIEW OF THE SUPREME COURT OF

CALIFORNIA, FILED DECEMBER 1, 2021 . . . . 1a

A PPEN DI X B — OR DER OF T H E

CA LI FOR N I A C OU RT OF A PPE A L ,

S E C O N D A P P E L L A T E DI S T R IC T,

DIVISION FOUR, FILED AUGUST 13, 2021 . . . . 2a

APPENDIX C — ORDER OF THE SUPERIOR

COURT OF CALIFORNIA, COUNTY OF

LOS ANGELES, DATED JULY 31, 2020 . . . . . . . . 4a

A PPENDI X D — TRI A L TR A NSCRIP T

EXCERPT, FILED JULY 31, 2020 . . . . . . . . . . . . . 7a

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Brittain v. Hansen

(9th Cir. 2005) 451 F.3d. 982 . . . . . . . . . . . . . . . . . . . 15

City of Los Angeles v. Lyons,

461 U.S. 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

County of El Dorado v. Schneider

(1987) 191 Cal.App.3d 1263 . . . . . . . . . . . . . . . . . . . . 12

County of Sutter v. Davis,

234 Cal.App.319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Curtis v. Loether,

415 U. S. 189, 415 U. S. 193 (1974) . . . . . . . . . . . . 18, 19

Cynthia D. v. Superior Court

(1993) 5 Cal.4th 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Department of Homeland Security v.

Thuraissigiam,

140 S.Ct. 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ix

Cited Authorities

Page

Hardwick v. County of Orange

(9th Cir. 2017) 844 F.3d 1112 . . . . . . . . . . . . . . . . . . . 10

Hardwick v. County of Orange

(9th Cir. 2019) 980 F.3d 733 . . . . . . . . . . . . . . . . . . . . 17

In Re C.F.

(2011) 198 Cal.App.4th 454 . . . . . . . . . . . . . . . . . . . . . 23

In Re Gary W.

(1971) 5 Cal.3d 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re James Q.

(2000) 81 Cal.App.4th 255 . . . . . . . . . . . . . . . . . . . . . 10

In Re Marriage of Harris

(2004) 34 Cal.4th 210 . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Winship,

397 U.S. 358, 90 S. Ct. 1068,

25 L. Ed. 2d 368 (1970) . . . . . . . . . . . . . . . . . . . . . . . . 16

Jacqueline T. v. Alameda County Child

Protective Services

(2007) 155 Cal. App. 4th 456 . . . . . . . . . . . . . . . . . . . 17

Lister’s Case,

8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) . . . . . . . . . . 20

McDonald v. City of Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . 7, 8, 12, 13

x

Cited Authorities

Page

McMartin v. Children’s Institute International

(1989) 212 Cal. App. 3d 1393 . . . . . . . . . . . . . . . . . . . 17

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Miller v. Gammie

(9th Cir. 2003) 335 F.3d 889 . . . . . . . . . . . . . . . . . . . . 17

Minneapolis & St. Luis R. Co. v. Bombolis,

241 U.S. 211 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Moore v. East Cleveland,

431 U.S. 494 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Myers v. Contra Costa County Dept.

of Social Services

(9th Cir. 1987) 812 F.2d 1154 . . . . . . . . . . . . . . . . . . . 17

Parsons v. Bedford,

3 Pet. 433, 28 U. S. 447 (1830) . . . . . . . . . . . . . . . . . . 19

People v. Smith

(1971) 5 Cal.3d 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pernell v. Southall Realty,

416 U.S. 363 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Pierce v. Society of Sisters,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . 10, 14, 15

xi

Cited Authorities

Page

Prince v. Massachusetts,

321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Quilloin v. Walcott,

434 U.S. 246 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Rex v. Clarkson,

1 Str. 444, 93 Eng. Rep. 625 (K. B. 1722) . . . . . . . . . 20

Rex v. Delaval,

97 Eng. Rep. 913 (K.B. 1763) . . . . . . . . . . . . . . . . . . . 20

Santosky v. Kramer,

455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . passim

Sibron v. New York,

392 U.S. 40 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Smith v. City of Fontana,

818 F.2d 1411 (9th Cir. 1987),

overruled on other grounds by Hodgers-Durgin

v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) . . . . . . . 11

Smith v. Organization of Foster Families,

431 U.S. 816 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Stanley v. Illinois,

405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Timbs v. Indiana,

139 S. Ct. 682 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

xii

Cited Authorities

Page

Troxel v. Granville,

530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 15

Tull v. United States,

481 U.S. 412 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States Parole Comm’n v. Geraghty,

455 U.S. 388 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Washington v. Glucksberg,

521 U. S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Wisconsin v. Yoder,

406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Workman v. New York City,

179 U.S. 552 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

STATUTES AND OTHER AUTHORITIES

U.S. Const., amend. VII . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . 2, 3, 7, 15

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

California Civil Code § 592 . . . . . . . . . . . . . . . . . . . . . . . 14

California Const., Art. I, § 16 . . . . . . . . . . . . . . . . . . . . . 14

xiii

Cited Authorities

Page

California Family Code § 3901 . . . . . . . . . . . . . . . . . . . . 24

California Family Code § 17402 . . . . . . . . . . . . . . . . . . . 24

California Welfare and Institutions Code § 300(a) . . . . . 3

California Welfare and Institutions Code § 300(b)(1) . . 3

California Welfare and Institutions Code § 300(c) . . . . . 3

California Welfare and Institutions Code § 350(c) . . . . . 6

Pen. Code, § 11164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11165.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11165.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11165.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11165.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pen. Code, § 11169(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Pen. Code, § 11169(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

xiv

Cited Authorities

Page

Pen. Code, § 11169(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Pen. Code, § 11170(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Pen. Code, § 11170(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Pen. Code, § 11170(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sarah Abramowicz, English Child Custody

Law, 1660-1839: The Origins of Judicial

Intervention in Paternal Custody, Columbia

Law Review Vol. 99:1344 . . . . . . . . . . . . . . . . . . . . . . 19

1

Petitioner Eric E. respectfully petitions for a writ of

certiorari to review the judgment of the Superior Court

of the County of Los Angeles.

OPINIONS BELOW

The unreported Order of the Los Angeles County

Superior Court in Los Angeles County Department of

Children and Family Services v. Eric E., Los Angeles

County Superior Court Case No. 18LJJP00620C, is

contained in App. 4a.-10.a.

The unreported Order of the California Court of

Appeal in Los Angeles County Department of Children

and Family Services v. Adam E., California Court of

Appeal Case No. B308818, is contained in App. 2a.-3a.

The unreported denial of review of the California

Supreme Court in Los Angeles County Department of

Children and Family Services v. Eric E., California

Supreme Court Case No. S271010, is contained in App. 1a.

JURISDICTION

Jurisdiction is conferred under 28 U.S.C section

1257. The California Supreme Court denied review on

December 1, 2021. App. 1a. This Petition is therefore

timely filed.

CONSTITUTIONAL PROVISIONS AT ISSUE

The Seventh Amendment to the United States

Constitution provides:

2

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise reexamined in any Court of the United States,

than according to the rules of the common law.

The Fourteenth Amendment to the United States

Constitution provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

INTRODUCTION

In Troxel v. Granville, 530 U.S. 57, 65 (2000), this

Court characterized the liberty interest in the care,

custody, and control of children as “perhaps the oldest

of the fundamental liberty interests recognized by this

Court.” Child dependency proceedings have also been

characterized by this Court as “[bearing] many of the

indicia of a criminal trial.” Santosky v. Kramer, 455 U.S.

745, 762 (1982). Loss of custody also carries with it the

risk of parental inclusion in child abuse indices, even after

the child reaches the age of maturity. Yet, with limited

exception, States do not grant parents the option of a jury

3

trial for resolution of the factual allegations which place

parents at risk of loss of child custody. 1 Consistent with

the Fourteenth Amendment’s Due Process provision, this

Court should apply the Selective Incorporation Doctrine

to the jury trial right in the Seventh Amendment for

child custody proceedings. This is consistent with the

fundamental liberty interest at stake, the prosecutorial

nature of the proceedings, and the residual harm to

parents when custody is lost. This is the first of the two

questions presented. In the alternative, this Court should

require States to provide for jury trials based solely on

the Fourteenth Amendment’s Due Process provision,

independent of the Seventh Amendment. This is the

second of the two questions presented.

STATEMENT OF THE CASE

A. Factual Background

On May 5, 2020, DCFS filed a Juvenile Dependency

Petition (Dependency Petition) under California Welfare

and Institutions Code sections 300(a), (b)(1), and (c). (1CT

1-5.)2 On May 8, 2020, the detention hearing was held

before Referee Stephanie Davis. (1CT 64.) Father was

arraigned and emergency detention orders were entered;

the hearing was continued for the Hon. Michael Kelley to

make detention determinations. (1CT 65-66.) On May 11,

1. The exceptions are the States of Texas, Wisconsin,

Oklahoma, Virginia, and Colorado.

2. The record consists of two transcripts, referred to as

“1CT” (pp. 1-213) and “2CT” (pp. 214-373); there is one nonsequentially numbered reporter’s transcript, referred to as “1RT”

(pp. 1-to 213-300, 301-to 547-600, 601 to 867-900).

4

2020, Judge Kelley heard further arguments of counsel

and took the matter under submission. (RT 135.)

Father filed a motion to strike the Dependency

Petition on grounds of collateral estoppel/res judicata and

moved the juvenile court for a jury trial; alternatively, he

requested that an advisory jury be empaneled. (1CT 143.)

A trial setting conference was held on July 20, 2020.

The juvenile court set a briefing schedule for both motions

and a hearing on August 3, 2020. (RT 304.)

On July 31, 2020, the juvenile court denied Father’s

motion to strike the petition on the basis of collateral

estoppel/res judicata. The court found that this “is a

new claim not previously pled or adjudicated, and based

on additional moot facts.” (1RT 407.) Father’s motion

for a jury trial was denied as the court stated that the

cases cited were “extreme factual” situations and that

an empaneled advisory jury would not necessarily assist

the court in its fact-finding journey. App. 4a.-10a.; (1RT

403-404.)

On Aug ust 3, 2020, the adjudication hear ing

commenced. There were several witnesses, including

Adam E., his mother, and his paternal great-uncle, Daniel

F. Adam E. testified regarding incidents related to the

allegation of being forced into a car, and treatment of his

toe with hydrogen peroxide. (1RT 534-538.) With regard to

being allegedly “forced” into a car, Adam E. testified about

the trip to Utah with Father. He knew that Father wanted

him to attend his retirement ceremony in Utah. (1RT 534.)

Teen testified that Father was a career military naval

officer. (Ibid.) He knew this was very important to his

5

father. (1RT 535.) Adam E. testified that he participated

in the ceremony and was presented with the flag. He

also testified that during the weekend there, he played

basketball with Father and his Navy crew. (1RT 535.)

Daniel F. testified in his capacity as a visitation

monitor and a percipient witness. (1RT 819-820.) He

testified that he had frequently seen Father’s parenting

style with Teen and had never seen Father get physically

violent with him. (Ibid.) He had, however, seen Father

overseeing homework, taking Adam E. swimming, and

engaging in sports activities. (1RT 820.)

Daniel F. was aware of the trip to Utah planned for

Father’s retirement from the military. (1RT 821.) He was

present when father picked Teen up from school. (Ibid.) He

testified that when Adam E. came to the car, he kind of

bolted away and Father placed him in a kind of bear hug

and brought him back over to place him in the back seat

of the car. (Ibid.) He testified that he was in the vehicle

front seat when they drove away from the school. (1RT

821.) He testified that Father did not run any stop signs

or drive dangerously or erratically. (1RT 822.) There was

never any physical altercation between father and son on

the trip to Utah. (1RT 823.)

The juvenile court subsequently set a briefing

schedule. Father filed his brief in opposition on August

20, 2020. (2CT 317.) On August 21, 2020, the juvenile court

denied DCFS’s motion for disentitlement and its renewed

request to have the Father arrested for failure to appear

in court. (2CT 327.)

6

Father then presented his motion to dismiss the case

pursuant to Welfare and Institutions Code section 350,

subdivision (c), asserting that DCFS failed to meet its

burden of proof and the petition should be dismissed.

(2CT 328-333.) The juvenile court denied Father’s motion.

The juvenile court found sufficient evidence was

presented to overcome the motion to dismiss for failure

to meet their burden of proof. The court found a credible

risk of future physical violence by Father who “evidenced

a controlling nature, forcing Adam to conform to his will.”

(2CT 330.) The court found credible evidence that Father

in 2017 pushed Adam E. into his car and pushed him into

a drum set. (Ibid.) Adam E.’s testimony that he felt his

father needed to “control” him was found credible and

Mother’s testimony that Father once said, in frustration,

that he could “string Adam up by his ankles,” credible and

of sufficient evidentiary value as to support the teen being

at substantial risk of serious harm. (2CT 331.)

Moreover, the juvenile court found substantial

evidence Adam E. exhibited anxiety and untoward

aggressive behaviors when he testified that he would take

a knife when he went to Father’s house in case he needed

to “protect” his sister. (2CT 331.) The court found Father’s

conduct caused Adam E. emotional distress. (2CT 332.)

B. Procedural Background

On November 9, 2020, Father timely appealed the

juvenile court’s jurisdiction and disposition findings.

(2CT 372-373.) Father contended that the new petition of

the DCFS should have been stricken on grounds of res

judicata and collateral estoppel, and that there was a lack

7

of evidence to support dependency jurisdiction. Father

also contended that he was entitled to a jury trial under

State and Federal Constitutional Due Process.

After briefing was completed (and after multiple

requests for extensions by the DCFS), on July 29, 2021,

the Court of Appeal issued an Order to Show Cause

Re Dismissal of Appeal as Moot (OSC), with the Court

of Appeal citing Adam E.’s upcoming 18th birthday on

January 9, 2022, and the trial court’s June 9, 2021, minute

order terminating jurisdiction over the Teen. After Father

and DCFS both provided briefing in response to the OSC,

on August 13, 2021, the Court of Appeal issued an order

dismissing the appeal as moot. App. 2a.

Father timely filed a Petition for Review in the

California Supreme Court. The Petition for Review was

denied on December 1, 2021. App. 1a.

REASONS FOR GRANTING CERTIORARI

I.

The Seventh Amendment right to a jury trial is

one of the last in the Bill of Rights to be made

applicable to the States

Within the last 15 years, this Court has addressed

the issue of incorporation of the Second and Eighth

A mendments to the States. In McDonald v. City

of Chicago, 561 U.S. 742 (2010), it was held that the

Due Process Clause of the Fourteenth Amendment

incorporates the Second Amendment right recognized

in District of Columbia v. Heller, 554 U.S. 570 (2008). In

Timbs v. Indiana, 139 S. Ct. 682 (2019), it was held that the

Eighth Amendment’s proscription against excessive fines

8

applies to the States, relying again on the Due Process

Clause of the Fourteenth Amendment. This leaves only the

Third Amendment (addressing the quartering of soldiers),

and the Seventh Amendment yet to be held applicable to

the States. “Only a handful of the Bill of Rights protections

remain unincorporated.” McDonald v. City of Chicago,

supra, 561 U.S. at 765.

The Seventh Amendment provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise reexamined in any Court of the United States,

than according to the rules of the common law.

Although this Court has yet to consider the question of

the whether the Seventh Amendment should apply to the

States in juvenile dependency proceedings, in the early

20th Century it generally acknowledged that “[w]hile the

Seventh Amendment governs federal court proceedings,

it does not regulate civil proceedings in state court.”

Minneapolis & St. Luis R. Co. v. Bombolis, 241 U.S. 211,

217-218 (1916). As discussed below, in the century since

Bombolis was decided the analysis of whether one of the

Constitutional amendments in the Bill of Rights should

apply to the States has developed significantly, and hinges

on the due process nature of the liberty interest at issue.

This nation has for centuries valued the parent-child

relationship as fundamental to its liberties and traditions.

9

II. Parents have a fundamental Due Process liberty

interest in child custody, as recognized by this

Court and the Federal Courts of Appeal

In Santosky v. Kramer, supra, 455 U.S. 745, this

Court confirmed the “fundamental liberty interest of

natural parents in the care, custody, and management of

their child….” In that case, the Court held that before a

State could sever completely and irrevocably the rights

of parents in their natural child, due process required

that the State support its allegations by at least clear

and convincing evidence. The Court found that the “fair

preponderance of the evidence” standard was inconsistent

with due process because the private interest in parental

rights affected was substantial and the countervailing

governmental interest favoring the preponderance

standard was comparatively slight.

More recently, this Court addressed the issue of

grandparent visitation in Troxel v. Granville, supra, 530

U.S. 57. At issue was a Washington statute that permitted

“[a]ny person” to petition the superior court for visitation

rights “at any time,” and authorized the trial court to

grant such visitation if it would “serve the best interest

of the child.” The paternal grandparents petitioned for

visitation with their two granddaughters after their son

committed suicide, and the children’s mother notified them

she wished to limit their visitation with her daughters to

one short visit a month. The parents had never married

and had separated two years before the father died.

Before his death, the father had lived with the paternal

grandparents and had regularly brought his daughters

to his parents’ home for weekend visits.

10

Justice O’Connor’s plurality opinion in Troxel, in

which Chief Justice Rehnquist, and Justices Ginsburg and

Breyer joined, observed that “the Due Process Clause of

the Fourteenth Amendment protects the fundamental

right of parents to make decisions concerning the care,

custody, and control of their children.” Troxel v. Granville,

supra, 530 U.S. at 66. The plurality opinion concluded that

the Washington statute, as applied in that case, violated

this fundamental liberty interest. Id. at p. 67.

California courts have expressly acknowledged the

“fundamental liberty interest” all parents have in the

custody of their children as articulated in Santosky v.

Kramer and have further recognized that this liberty

interest “may not be extinguished without due process.

[Citation.]” In re James Q. (2000) 81 Cal.App.4th 255, 263.

See also In Re Marriage of Harris (2004) 34 Cal.4th 210;

Cynthia D. v. Superior Court (1993) 5 Cal.4th 242.)

Parental claims that children were unlawfully removed

from their custody “should properly be assessed under the

Fourteenth Amendment standard for interference with

the right to family association.” Hardwick v. County of

Orange (9th Cir. 2019) 980 F.3d 733. The Ninth Circuit in

Hardwick emphasized the parental right of custody as

the “oldest” fundamental right recognized by the United

States Supreme Court:

‘[T]he interest of parents in the care, custody,

and control of their children—is perhaps the

oldest of the fundamental liberty interests

recognized by [the Supreme Court].’ Troxel

v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054,

147 L. Ed. 2d 49 (2000); see e.g., Pierce v. Soc’y

11

of the Sisters, 268 U.S. 510, 530, 534-35, 45

S. Ct. 571, 69 L. Ed. 1070 (1925) (requiring

parents to send their children to public school

‘unreasonably interferes with the liberty of

parents and guardians to direct the upbringing

and education of children under their control’).

Thus, parents have both a constitutional interest

in ‘the companionship of their children’ and a

‘constitutionally protected interest in raising

their children.’ Smith v. City of Fontana, 818

F.2d 1411, 1418 (9 th Cir. 1987), overruled on

other grounds by Hodgers-Durgin v. de la

Vina, 199 F.3d 1037 (9th Cir. 1999).

Considering the indisputable fundamental liberty

interest at issue, Father is entitled to a jury trial and

the Petition should be granted to confirm this right. The

California Supreme Court has historically required a jury

trial in civil cases implicating fundamental liberties and

State Constitutional Due Process protection, irrespective

of English common law. For example, in In Re Gary

W. (1971) 5 Cal.3d 296, the California Supreme Court

addressed the question of whether persons subject to

confinement proceedings under the California Welfare

and Institutions Code are entitled, upon request, to a

jury trial. The Court concluded that the right applies, as

“interests involved in civil commitment proceedings are

no less fundamental than those in criminal proceedings

and that liberty is no less precious because forfeited in a

civil proceeding than when taken as a consequence of a

criminal conviction.” Id. at 307. See also People v. Smith

(1971) 5 Cal.3d 313, 317 [due process requires jury trial

in proceedings to extend commitment to California Youth

Authority].

12

In this case, the threat of involuntary loss of custody

of a child—the oldest fundamental liberty interest

recognized by the United States Supreme Court—cannot

be undertaken without the right of a trial of peers.

California courts which have denied the right to a jury

trial in civil cases have done so by expressly rejecting

assertion of a fundamental liberty interest. For example,

in County of Sutter v. Davis, supra, 234 Cal.App.319,

the California Court of Appeal addressed the question

of whether the appellant was entitled to a jury trial on

the issue of paternity and payment of child support. The

Court denied the request not because of English common

law, but because the issue of paternity did not implicate a

fundamental liberty interest. On the contrary, the “only

direct consequence of an adjudication of paternity is an

obligation to pay money.” Id. at 328, citing County of El

Dorado v. Schneider (1987) 191 Cal.App.3d 1263, 1270.

That is quite different than the involuntary loss of custody

of a child. Indeed, the appellant in County of Sutter v.

Davis was seeking to avoid custody and the child support

payments which would flow from a finding of paternity.

In the case herein, Father is seeking to retain custody.

III. Both the fundamental liberty interest in child

custody and the Seventh Amendment right to a jury

trial are consistent with ordered liberty and are

deeply rooted in the Nation’s history and tradition

In McDonald v. City of Chicago, supra, 561 U.S. 742,

this Court applied the Second Amendment right to keep

and bear arms to the States with respect to possession of

a handgun in the home. In reaching this conclusion, the

Court confirmed the modern analytical framework for the

incorporation doctrine, which is grounded in Due Process:

13

….we must decide whether the right to keep

and bear arms is fundamental to our scheme of

ordered liberty, Duncan, 391 U. S., at 149, or as

we have said in a related context, whether this

right is ‘deeply rooted in this Nation’s history

and tradition,’ Washington v. Glucksberg, 521

U. S. 702, 721 (1997) (internal quotation marks

omitted).

McDonald v. City of Chicago, supra, 561 U.S. at 767.

The Court must decide whether that right is

fundamental to the Nation’s scheme of ordered

liberty, Duncan, supra, at 149, 88 S. Ct. 1444,

20 L. Ed. 2d 491, or, as the Court has said in a

related context, whether it is “deeply rooted in

this Nation’s history and tradition,” Washington

v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258,

117 S. Ct. 2302, 138 L. Ed. 2d 772.

Id. at 744.

For many decades, the question of the rights

protected by the Fourteenth Amendment

against state infringement has been analyzed

u nder the Due P rocess Clause of that

Amendment and not under the Privileges or

Immunities Clause.

Id. at 746.

Currently, all States have either Constitutional

provisions or statutes securing jury trial rights in actions

at law. At the time the Seventh Amendment was ratified,

14

the colonies all had Constitutions with provisions securing

jury trial rights. California has a Constitutional provision

(Article I, Section 16) providing that the right to a jury

is “secured to all,” and a statute (California Civil Code

section 592) ensuring the right to a jury trial in specified

civil cases, including “actions…for injury”.

The liberty interest in child custody is “deeply rooted

in this Nation’s history.” Alternatively, it is “fundamental”

to the Nation’s scheme of ordered liberty. This Court

has acknowledged the fundamental liberty interest in

child custody in a long line of cases dating back to 1923.

See Santosky v. Kramer, supra, 455 U.S. 745, 753 [“….

freedom of personal choice in matters of family life is a

fundamental liberty interest protected by the Fourteenth

Amendment,” citing Quilloin v. Walcott, 434 U.S. 246, 255

(1978); Smith v. Organization of Foster Families, 431 U.S.

816, 845 (1977); Moore v. East Cleveland, 431 U.S. 494, 499

(1977) (plurality opinion); Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 639-640 (1974); Stanley v. Illinois,

405 U.S. 645, 651-652 (1972); Prince v. Massachusetts,

321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268

U.S. 510, 534-535 (1925); and Meyer v. Nebraska, 262 U.S.

390, 399 (1923).

In the oldest of the cases cited above, Meyer v.

Nebraska, supra, 262 U.S. 390, a Nebraska law prohibited

teaching in a language other than English or teaching a

foreign language to a child who had not completed the

8th grade. In striking down the Nebraska law, this Court

defined the liberty interest guaranteed by the Fourteenth

Amendment’s Due Process clause as denoting this Court

defined the liberty interest guaranteed by the Fourteenth

Amendment’s Due Process clause as denoting

15

“not merely freedom from bodily restraint but

also the right of the individual to contract, to

engage in any of the common occupations of

life, to acquire useful knowledge, to marry,

establish a home and bring up children, to

worship God according to the dictates of his

own conscience, and generally to enjoy those

privileges long recognized at common law as

essential to the orderly pursuit of happiness

by free men.” (Emphasis added.)

Id. at 399.

In Troxel v. Granville, supra, 530 U.S. 57, this Court

reiterated that the parental interest in “the care, custody,

and control of their children” is ““perhaps the oldest of

the fundamental liberty interests recognized by this

Court” and reaffirmed the validity of such long-standing

precedents as the above-referenced Meyer v. Nebraska,

262 U.S. 390, 401 [right of parents to control education of

their children]; Pierce v. Society of Sisters, 268 U.S. 510,

534-35 (1925) [right to direct upbringing and education of

children]; and Prince v. Massachusetts, 321 U.S. 158, 166

(1944) [“the custody, care and nurture of the child reside

first in the parents, whose primary function and freedom

include preparation for obligations the state can neither

supply nor hinder.” See also Wisconsin v. Yoder, 406 U.S.

205, 232-33 (1972) [“primary role of the parents in the

upbringing of their children is now established beyond

debate as an enduring American tradition,” particularly

in matters of “moral standards, religious beliefs, and

elements of good citizenship” (emphasis added)].

16

IV. Dependency proceedings are quasi-prosecutorial,

and subject parents to the jeopardy of inclusion in

child abuse data bases even after the child reaches

maturity

Child dependency proceedings have been characterized

by this Court as “[bearing] many of the indicia of a criminal

trial.” Santosky v. Kramer, supra, 455 U.S. at 762. In

Brittain v. Hansen (9th Cir. 2005) 451 F.3d. 982, 989-990,

the Ninth Circuit expanded upon this characterization:

When the state seeks to terminate parental

rights due to child abuse, the state is required to

prove abuse or neglect by clear and convincing

evidence. Santosky, 455 U.S. at 769-70. Such

hearings necessarily are adversarial in nature,

with the government bringing accusations of

fault against parents. Id. at 748, 759-62 (“[T]

he factfinding stage of a state-initiated permanent

neglect proceeding bears many of the indicia

of a criminal trial”) (citations omitted). When

the government brings legal actions against

individuals and seeks to deprive them of

liberty interests, the constitutional concerns

are at their zenith. See Santosky, 455 U.S.

at 756 (explaining that termination of parental

rights based on child abuse requires heightened

constitutional scrutiny because the actions are

“government-initiated proceedings that threaten

the individual with a significant deprivation

of liberty or stigma”) (internal quotations and

citation omitted, emphasis added); see also In re

Winship, 397 U.S. 358, 362-65, 90 S. Ct. 1068,

25 L. Ed. 2d 368 (1970) (requiring proof beyond

a reasonable doubt for criminal convictions).

17

In Miller v. Gammie (9th Cir. 2003) 335 F.3d 889, the

Ninth Circuit en banc addressed the question of whether

a social worker had absolute immunity in a civil rights

action in connection with the placement of a minor with

prior sexual abuse history into a private home without

disclosing that history to the parents. Citing Myers v.

Contra Costa County Dept. of Social Services (9 th Cir.

1987) 812 F.2d 1154, 1157, the Court recognized that “the

initiation and pursuit of child-dependency proceedings

were prosecutorial in nature and warranted absolute

immunity on that basis.” Id. at 896. (Emphasis added.) The

Court elsewhere confirmed “immunity for social workers

only for the discretionary, quasi-prosecutorial decisions

to institute court dependency proceedings to take custody

away from parents.” Id. at 899, citing Myers v. Contra

Costa County, supra, 812 F.2d at 1157. (Emphasis added.)

Subsequent Ninth circuit cases have confirmed the

prosecutorial nature of dependency proceedings. See,

e.g., Hardwick v. County of Orange (9 th Cir. 2017) 844

F.3d 1112, 1115.

California cases are in accord with the Ninth Circuit.

See, e.g., Jacqueline T. v. Alameda County Child Protective

Services (2007) 155 Cal. App. 4th 456, 467 [“a social

worker’s decision to initiate dependency proceedings is a

quasi-prosecutorial decision immunized by [Government

Code] section 821.6”]; McMartin v. Children’s Institute

International (1989) 212 Cal. App. 3d 1393, 1404 [“Child

services social workers are entitled to absolute immunity

in performing quasi-prosecutorial functions such as

initiating and pursuing dependency petitions in cases of

suspected child abuse or neglect”].

18

As a result of the prosecutorial nature of childdependency proceedings, social workers typically have

immunity from civil liability, just as criminal prosecutors

have immunity. The immunity is not absolute. In California,

for example, it does not extend to wrongdoing such as

perjury, fabrication of evidence, and failure to disclose

exculpatory evidence with malice. See Government Code

section 820.21, which applies specifically to juvenile court

social workers.

There are other aspects of dependency proceedings

which illustrate its prosecutorial nature. For example,

indigent parents are afforded the right to have counsel

appointed, as to indigent defendants in criminal

prosecutions. Welfare and Institutions Code section 317.

V. Dependency proceedings are actions at common

law which impact the legal rights of parents to the

custody and care of their children

With respect to the “Suits at common law” component

of the Seventh Amendment, the inquiry is whether such

proceedings are actions in equity or admiralty. As this

Court explained in Pernell v. Southall Realty, 416 U.S.

363, 374-375 (1974):

“‘while the thrust of the [Seventh] Amendment

was to preserve the right to jury trial as it

existed in 1791, it has long been settled that the

right extends beyond the common law forms

of action recognized at that time.’” Curtis v.

Loether, 415 U. S. 189, 415 U. S. 193 (1974).

The phrase ‘suits at common law’ includes not

only suits ‘which the common law recognized

19

among its old and settled proceedings, but suits

in which legal rights were to be ascertained

and determined, in contradistinction to those

where equitable rights alone were recognized,

and equitable remedies were administered. . . .

In a just sense, the amendment then may

well be construed to embrace all suits which

are not of equity and admiralty jurisdiction,

whatever may be the peculiar form which they

may assume to settle legal rights.’ Parsons

v. Bedford, 3 Pet. 433, 28 U. S. 447 (1830)

(emphasis in original). Whether or not a close

equivalent to § 11501 existed in England in 1791

is irrelevant for Seventh Amendment purposes,

for that Amendment requires trial by Jury in

actions unheard of at common law, provided

that the action involves rights and remedies

of the sort traditionally enforced in an action

at law, rather than in an action in equity or

admiralty. See Curtis v. Loether, supra, at 415

U. S. 195. (Emphasis added.)

Child dependency proceedings are actions at law, not

equity, and are certainly not actions in admiralty. More

importantly, modern legal scholars recognize that child

custody proceedings in the United States have always

been common law actions, not actions in equity. See

Sarah Abramowicz, English Child Custody Law, 16601839: The Origins of Judicial Intervention in Paternal

Custody, Columbia Law Review Vol. 99:1344, 1348, fn.

16: In nineteenth century America “most child custody

cases were heard by courts of common law rather than

by courts of chancery.” English law in 1971 confirms that

the equivalent of modern dependency proceedings were

20

likewise actions at common law. The closest English case

to the relevant time period of 1791 is Rex v. Delaval, 97

Eng. Rep. 913 (K.B. 1763). (KB referring to the King’s

Bench, or “Rex”.) In that case, the court granted itself

discretion (upon a petition for habeas corpus) to release to

a child “improperly restrained” its legal guardian, whether

that guardian be the mother or the father. Previously, the

King’s Bench granted itself no such discretion to release

custody to the mother. The Court proceeded to refuse

delivery of the child to the father’s custody.

This Court has acknowledged that actions before the

King’s Bench were indeed actions at common-law, citing

Rex. V. Delaval:

“….common-law courts sometimes ordered or

considered ordering release in circumstances

that would be beyond the reach of any habeas

statute ever enacted by Congress, such as

release from private custody. See, e.g., Rex v.

Delaval, 3 Burr. 1434, 1435-1437, 97 Eng. Rep.

913, 914 (K. B. 1763) (release of young woman

from “indentures of apprenticeship”); Rex v.

Clarkson, 1 Str. 444, 93 Eng. Rep. 625 (K. B.

1722) (release from boarding school); Lister’s

Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721)

(release of wife from estranged husband’s

restraint). What matters is that all these cases

are about release from restraint.

Department of Homeland Security v. Thuraissigiam,

140 S.Ct. 1959, 1972.

21

The remedy sought by the DCFS in this case, removal

of child custody, also directly impacts the legal right of

Father to the custody and care of Adam E. See Tull v.

United States, 481 U.S. 412 (1987) [an action for civil

penalty is similar to common-law remedies to punish

culpable individuals which could only be enforced in courts

of law, since the legislative history of the Clean Water Act

reveals that Congress wanted the United States District

Court to consider the need for retribution].

Further, the central underlying factual issues in the

DCFS dependency proceeding against father was a claim

of injury to Adam E. [application of hydrogen peroxide].

Injury claims are actions at law, not equity. See Workman

v. New York City, 179 U.S. 552, 581 (1900).

With respect to the “value in controversy to exceed

twenty dollars” component of the Seventh Amendment, the

financial ramifications of child custody are incalculable. As

noted in Section VI, infra, loss of custody places parents at

risk of inclusion of child abuse indices, require disclosures

for future employment, and in the case of Father resulted

in increased child support payments in excess of twenty

dollars.

VI. Although Adam E. has now reached the age of

maturity, this action is not moot pursuant to

established exceptions

The California Court of Appeal dismissed Father’s

appeal as moot, as Adam E. was approaching the age of

maturity while the appeal was pending. App. 2a. He has

now reached the age of maturity. Yet there are several

established exceptions to mootness which should apply.

22

A.

The exception of “collateral consequences”

applies as Father remains in jeopardy of

inclusion in California’s Child Abuse Central

Index, and must report the loss of custody to

potential employers

The doctrine of “collateral consequences” as an

exception to mootness was first applied by this Court in

Sibron v. New York, 392 U.S. 40, 55 (1968). The “essential

and irreducible constitutional requirement is simply a

nonfrivolous showing of continuing or threatened injury at

the hands of the adversary.” United States Parole Comm’n

v. Geraghty, 455 U.S. 388, 412 (1980).

Not only has Father lost custody of his child—the

loss of a fundamental liberty interest—he is subject

to the power of the government to impose the residual

penalty of identification in a “Child Abuse Central Index”

(CACI) pursuant to California’s Child Abuse and Neglect

Reporting Act (CANRA), Penal Code section 11164 et seq.

CANRA authorizes persons to report suspected child

abuse or neglect to certain public agencies, including

a county welfare department. (Pen. Code, §§ 11165.7,

11165.9, 11166.) The CANRA defines child abuse or neglect

to include “physical injury or death inflicted by other

than accidental means upon a child by another person”

(Pen. Code, § 11165.6) and “the negligent treatment or

the maltreatment of a child by a person responsible for

the child’s welfare under circumstances indicating harm

or threatened harm to the child’s health or welfare” (id.,

§ 11165.2).

An agency reviewing a report of alleged child abuse

or neglect must forward to the Department of Justice “a

23

report in writing of every case it investigates of known or

suspected child abuse or severe neglect” after the agency

“has conducted an active investigation and determined

that the report is not unfounded … .” (Pen. Code, § 11169,

subd. (a).) The reporting agency must notify the known or

suspected child abuser that he or she has been reported

to the CACI. (Id., § 11169, subd. (b).) The DOJ is required

to “maintain an index of all reports,” called the CACI.

(Pen. Code, § 11170, subd. (a)(1); see id., § 11169, subd.

(b).) The DOJ acts only as “a repository” of reports to be

maintained in the CACI, while the reporting agencies are

“responsible for the accuracy, completeness, and retention

of the reports … .” (Id., § 11170, subd. (a)(2).) The DOJ must

retain reports for a period of 10 years from the date the

most recent report is received. (Id., § 11170, subd. (a)(3).)

Of significance herein, identification in the CACI is

not restricted to parents accused or convicted of criminal

offenses against their children. Parents who are subject to

loss of custody of their children in dependency proceedings

are likewise subject to identification in the CACI. For

example, in In Re C.F. (2011) 198 Cal.App.4th 454, the

appellant (mother) was identified in the CACI after

having been charged with infliction of serious physical

harm and failure to protect her infant daughter. Criminal

charges were not brought, but the mother was subject to

a dependency petition for loss of custody. Several months

before the jurisdictional hearing the agency reported the

allegations to the Department of Justice and mother was

identified in the CACI. At the hearing, the mother was

not found culpable for infliction of serious physical harm,

she was found culpable for failure to protect. Although

the failure to protect count was reversed on appeal,

identification in the CACI remained and mother had to

petition the court for removal.

24

The foregoing illustrates the importance of the right

to a jury trial. Not only is the “oldest” fundamental liberty

interest at stake, but parents face the risk of inclusion in a

government database with no assurance of removal until

the parent reaches the age of 100. (Pen. Code section 11169

(f).) Thus, not only is the loss of custody at stake, so is the

residual “scarlet letter” of inclusion in a Department of

Justice database. In perpetuity, that parent must disclose,

if asked, that he or she is a “child abuser”, for such things

as applications for organized activities or employment

involving children, and applications for employment

involving policing, national security clearances, weapon

permits, and related renewals. That this punishment,

in addition to loss of custody, can still occur in the 21st

Century without the right of trial by peers is a travesty.

In addition, Father’s loss of custody requires

disclosures for future employment, and has resulted

in increased child support payments. Prior to the

dependency proceedings at issue, Father was divorced

from Adam E.’s mother. As of May 1, 2020, Father had

joint 50-50 custody of Adam E. with prior wife. Yet after

loss of custody, Father was required to pay substantially

higher support payments by operation of California law.

See California Family Code sections 3901 and 17402

[setting forth mandatory child support obligations, which

increase if custody is lost].

B. Judicial review will be perpetually evaded

and denied to a parent when dependency

proceedings are initiated while the minor child

is close to the age of adulthood

In addition to the foregoing, this Court should apply

the exception of “capable of repetition, but evading

25

review.” See City of Los Angeles v. Lyons, 461 U.S. 95, 109.

Parents at risk of loss of custody of children approaching

the age of maturity, such as Father, will never be able to

bring the issue of the right to a jury trial to fruition as

the appellate process will inevitably be ongoing while the

minor reaches the age of maturity.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Timothy V. K assouni

Counsel of Record

K assouni Law

455 Capitol Mall, Suite 604

Sacramento CA 95814

(877) 770-7379

timothy@kassounilaw.com

Counsel for Petitioner

DATED: March 1, 2022

APPENDIX

1a

Appendix

A

APPENDIX A — ORDER

DENYING

REVIEW OF

THE SUPREME COURT OF CALIFORNIA, FILED

DECEMBER 1, 2021

Court of Appeal, Second Appellate District,

Division Four - No. B308818

S271010

IN THE SUPREME COURT OF CALIFORNIA

En Banc

IN RE ADAM E., A PERSON COMING

UNDER THE JUVENILE COURT LAW.

––––––––––––––––––––––––––––––

LOS ANGELES COUNTY DEPARTMENT OF

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ERIC E.,

Defendant and Appellant.

The petition for review is denied.

CANTIL-SAKAUYE

Chief Justice

2a

Appendix

APPENDIX B — ORDER

OFBTHE CALIFORNIA

COURT OF APPEAL, SECOND APPELLATE

DISTRICT, DIVISION FOUR, FILED

AUGUST 13, 2021

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

B308818

(Super. Ct. No. 18LJJP00620C)

Los Angeles County

IN RE ADAM E., A PERSON COMING UNDER

THE JUVENILE COURT LAW.

––––––––––––––––––––––––––

LOS ANGELES COUNTY DEPARTMENT OF

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ERIC E.,

Defendant and Appellant.

3a

Appendix B

THE COURT:*

On July 29, 2021, the court ordered both parties to

show cause why this appeal should not be dismissed as

moot. Having reviewed the parties’ responses, we dismiss

the appeal filed November 9, 2020 as moot.

/s/ *MANELLA

MANELLA, P.J.

/s/ COLLINS

COLLINS, J.

/s/ CURREY

CURREY, J.

4a

AppendixOF

C THE SUPERIOR

APPENDIX C — ORDER

COURT OF CALIFORNIA, COUNTY OF LOS

ANGELES, DATED JULY 31, 2020

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Juvenile Dependency/Adoption Division

LJ427

18LJJP00620C

IN THE MATTER OF:

EVERS, ADAM

July 31, 2020

8:30AM

Honorable Michael C. Kelley, Judge

Wendy Diaz, Judicial Assistant

Linda Meyer (#8534), Court Reporter

NATURE OF PROCEEDINGS: Motion Hearing

The minor subject to the following orders is: Adam Evers

Date of birth: 1/9/2004

The matter is called for hearing.

The following parties are present for the aforementioned

proceeding:

5a

Appendix C

DCFS, Petitioner

Eric Evers, Presumed Father

Anastasia Goncharko, LADL3 for Mother

Aaron Jeppson, Deputy County Counsel

Liza Park, Children’s Law Center 2 for Minor

Pamela Tripp, Attorney

all parties appear via webex

The Court admonishes all parties present regarding the

confidential hearing advisement on the record this date.

The father’s motions for a Jury Trial and to Strike the

Petitioner’s Dependency Petition in Whole are heard,

argued and denied for the reasons stated on the record.

Father’s counsel oral request to stay the trial is heard,

argued and denied for the reasons stated on the record.

The court grants father’s counsel request for a transcript

of this hearing.

Trial setting conference is held in open court as stated

on the record.

The Court denies the request to preclude the minor’s

testimony as stated on the record.

6a

Appendix C

The Court orders the Dependency Investigator to be on

call on August 3, 2020.

All prior orders not in conflict shall remain in full force

and effect.

The Adjudication Hearing on 08/03/2020 remains In

full force and effect.

7a

Appendix

D

APPENDIX D — TRIAL

TRANSCRIPT

EXCERPT,

FILED JULY 31, 2020

[401] CASE NUMBER:

18LJJP00620-C

CASE NAME:

ADAM E., A MINOR

LANCASTER, CALIFORNIA;

FRIDAY, JULY 31, 2020

DEPT. 427

HON. MICHAEL C. KELLEY, JUDGE

COURT REPORTER:

LINDA MEYER, CSR NO. 8534

TIME:

A.M. SESSIONS

(THIS CASE BEING CALLED

AND WHEREBY COMMENCED

AS TO THIS DATE, VIA

THE COURT WEBEX, AS

FOLLOWS)

THE COURT: WE’RE READY TO GO ON THE

RECORD IN THE CASE CONCERNING THE EVERS

MINOR. CASE NUMBER 18LJJP00620-C.

APPEARANCES, PLEASE.

MR. JEPPSON: A ARON JEPPSON FOR THE

DEPARTMENT.

8a

Appendix D

MS. PARK: LIZA PARK, CLC ON BEHALF OF

THE MINOR

***

[403] EITHER RES ADJUDICATA OR COLLATERAL

ESTOPPEL.

I WILL HEAR EVERYBODY. I WANT EVERYONE

TO KNOW I HAVE READ THE OPINIONS AND AM

FAMILIAR WITH THE ISSUES IN WHICH YOU

FILED THE MOTION.

MS. TRIPP, I’LL LET YOU START.

MS. TRIPP: THANK YOU, YOUR HONOR. I

WOULD BE INCLINED TO WAIVE MY OPENING ON

THE MOTION, JUST RESERVE AND RESPOND TO,

BY WAY OF REBUTTAL TO OPPOSING COUNSEL.

THE COURT: ALL RIGHT. THAT’S FINE.

MR. JEPPSON.

MR. JEPPSON: IN THAT CASE, YOUR HONOR,

I’LL JUST SUBMIT ON WHAT HAS BEEN WRITTEN;

SO NO REBUTTAL WILL BE NEEDED.

THE COURT: ALL RIGHT. MS. PARK, DO YOU

WANT TO BE HEARD?

MS. PARK: YOUR HONOR, I WOULD LIKEWISE

SUBMIT.

9a

Appendix D

THE COURT: ALL RIGHT. SO AS I SAID, YES,

THAT I HAVE READ THE PAPERS CAREFULLY

AND REREAD A NUMBER OF A FEW CAME-INS

THAT ARE CITED.

WITH RESPECT TO THE JURY TRIAL MOTION,

FATHER’S MOTION ASKS FOR A JURY TRIAL

AND ARGUES THAT SUCH A PROCEDURE IS

NOT SPECIFICALLY EXCLUDED BY CASE LAW.

ALTERNATIVELY, HE REQUESTS THAT THE

COURT EMPANEL AN ADVISED JURY PANEL TO

HEAR, ADVISED JURY -- THE EVIDENCE AND

THE ALLEGATIONS. I’LL -- A DENIAL TO THAT

REQUEST, THAT ALTHOUGH THAT PROCEDURE

IS NOT EXCLU DED BY CA SE L AW, IS NOT

AUTHORITY THAT IT WOULD SUPPORT ITS

[404] ADOPTION. HERE -- OF THE PRIMARILY

RELIED UPON IN COURT, THE IN RE CARL W.

CASE MADE IT CLEAR THAT THERE IS NO RIGHT

TO A JURY TRIAL IN JUVENILE CASES. AS TO THE

REQUEST FOR AN ADVISORY JURY, THERE ARE

NO AUTHORITY THAT IS W RIGHT TO THAT THE

PROCEDURAL SYSTEM IN THE DEPENDENCY

CASE WOULD, AND ONE INSTANCE IN WHICH

THE APPELLATE COURT HELD THAT IT WAS

PROPER WAS A JUVENILE DELINQUENCY CASE,

JUVENILE JUSTICE CASE; AGAIN THAT’S IN RE

CARL W. CASE.

I N A DDI T ION, T H AT CA S E I N VOLV ED

EXTREME FACTS, THAT THERE ARE EXTREME

10a

Appendix D

-- EVIDENCE FOR THE CASE; EVEN IF SUCH

A PR O C EDU R E W ER E PER M I T T ED I N A

DEPENDENCY CASE, AND I SEE NO AUTHORITY

TO SUPPORT THAT, I DO NOT BELIEVE IT WOULD

IMPROVE THE QUALITY OF THE FACTFINDING

OR/AND EXPEDITE THE USE OF, TO USE AN

ADVISORY JURY. SO. SO THAT MOTION IS DENIED.

WITH RESPECT TO THE MOTION TO STRIKE,

I’M GOING TO DENY THAT MOTION, AS WELL.

FROM FATHER’S MOTION, SEEKS TO STRIKE

THE ENTIRE PETITION ON THE GROUND THAT

IT IS BARRED BY THE DOCTRINES OF RES

ADJUDICATA OR COLLATERAL ESTOPPEL -- IN AS

TO WHETHER SUCH A MOTION IS EVEN VIABLE

PROCEDURALLY, WHICH SEEKS TO DISMISS

A PETITION PRIOR TO THE JURISDICTION

HEA RING. BU T I REA LLY DON’ T H AV E TO

DECIDE THAT ISSUE BECAUSE EVEN IF I WERE

TO CONCLUDE THAT A MOTION TO STRIKE ON

THE PETITION ON THESE GROUNDS WOULD BE

PROPER PROCEDURALLY, THE MOTION LACKS

MERIT IN THIS PARTICULAR CASE.