Opposition Brief — King v. Pfeiffer (No. 09-612)
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Supreme Co:"<3, U.S.
FILED
DEC 24 2009
OFFICE OF THE CLERIK
No. 09-612
|
In The
Supreme Court of the Anited States
Ariel King,
Petitioner,
Vv.
Michael Pfeiffer,
Respondent.
On Petition for Writ of Certiorari to the
Supreme Court of the Commonwealth of Virginia
RESPONDENT'S BRIEF IN OPPOSITION
David Charles Masselli, Esq* Sean W. O’Connell, Esq.
Masselli PC Law Offices of Sean W.
4113 Lee Highway O'Connell
Arlington, Virginia 22207 4113 Lee Highway
(703) 741-0402 Arlington, Virginia
2Z220T
703) 558-0000
Counsel of Record
Counsel for Respondent Michael Pfeiffer
i
QUESTIONS PRESENTED
1. Is it a denial of a litigant’s due process rights,
including her right to challenge subject matter
jurisdiction, if in order to obtain de novo review of a
decision of a state Juvenile and Domestic Relations
Court giving sole physical custody of her child to her
spouse, she may arrested for having failed to appear at
a sentencing hearing for civil contempt previously
adjudicated?
2. Have constitutional mghts of a child, who is not
party to this appeal and who is represented by a
guardian ad litem, been denied when her mother is
barred from contact with the child until after
appearing before the court which has found her in
contempt and undergoing a psychological evaluation
following a finding by the court that the mother had
abducted the child (which finding was subsequently
confirmed by the mother’s pleading guilty to felony
child abduction out of state) and that child protective
services of a sister state had expressed fear for the
child's safety while in custody of the mother?
3. Have constitutional or human rights of a child,
who is not party to this appeal and who is represented
by a guardian ad litem, been denied when her mother
is barred from contact with the child until after
appearing before the court which has found her in
contempt and undergoing a psychological evaluation
il
following a finding by the court that the mother had
abducted the child (which finding was subsequently
confirmed by the mother’s pleading guilty to felony
child abduction out of state) and that child protective
services of a sister state had expressed fear for the
child’s safety while in custody of the mother?
m1
TABLE OF CONTENTS
Sap ly ee Og 8a 4, pig) nao i
TABLE OF CONTENTG..................sccccccossseseeseoeees lll
TABLE OF AUTHORITIES. ........................ccceeeees vi
CN ins cicada piccnsinsenrssevesenessaurievasseuss 1
STATEMENT OF JURISDICTION...........000000000... 2
STATUTORY PROVISIONS INVOLVED............ 2
STATEMENT OF THE CASE. ...........000..0 ee 2
I. The JDR Court Holds Extensive Hearings
at Which Petitioner Is Represented by Counsel
Before Determining Custody.. ............................. 4
II.Petitioner’s Untimely Appeal of the JDR
Order Is Rejected By The Circuit Court ata
Noticed and Scheduled Hearing... ..................... 14
III. Petitioner’s Appeals to the Virginia
Court of Appeals and Virginia Supreme Court
ASO PEOMGTIY TOIOCCOG se. ooccccscsiesesescsessocsevesesssasensss 16
REASONS TO DENY THE PETITION............... 17
A. Petitioner Was Not Denied Equal
Protection in Seeking an Appeal. .................... 17
B. Petitioner Was Not Deprived of Due
Process Because She Was Facing Penalties for
Rp IIRs: 55s scdniascstessivokicebsccouseee ten dra repcee ae aencas orem 19
iV
C. The JDR Decision Was Not Arbitrary,
Contained Findings of Fact, and Was Based on
SU OCMIRCAEE BrP IOOGc. 0.00. ccccccecsessesscecccosceccsevessse 21
D. Petitioner Was Not Denied Any Due
Process Rights When Her Untimely Appeal Was
Dismissed by the Circuit Court......................... 22
E. The Denial of the Appeal to the Court of
Appeals Was Appropriate and Not a Denial of
ren. ce a cicsulideyspanibucnedvaseinacisccbianhxeeaaes 22
F. The Rights of the Child Were Respected
ee dora d eacaucaredenanat 23
8 I RA EEN Se en LR LAT TD 24
APPENDIX:
SEPTEMBER 17, 2007 JDR INITIAL ORDER
Picea dedesieticilice'ckv ochaw ca: vasans ainoueekbaaerceaseaoe cs Resp. App. 1
SEPTEMBER 17, 2008 JDR ORDER
Log bate deiated bicioaiard ce tidakce ean stan ateteuleaeaaees inetsstrrorvcee SOOD. App &
NOVEMBER 8, 2007 JDR ORDER
FPR it et NEE ENE INTE EA en PD Resp. App 8
FEBRUARY 2, 2008 JOR ORDER CONTINUING
CASE AND ORDERING RETURN OF CHILD TO
I oa ces tara in dehuddces en uavensareatel Resp. App. 10
FEBRUARY 2, 2008 JDR ORDER ALLOWING
Vv
WITHDRAWAL OF DR. LANE............ Resp. App. 12
FEBRUARY 21, 2008 JDR ORDER GRANTING
TEMPORARY PHYSICAL CUSTODY TO FATHER
WITH VISITATION TO MOTHER. ..... Resp. App. 14
FEBRUARY 21, 2008 JDR ORDER SETTING RULE
TO SHOW CAUSE FOR 04/08/08. ....... Resp. App. 18
APRIL 8, 2008 JDR ORDER FINDING
PETITIONER IN CONTEMPT AND CONTINUING
CAE TU OGPIGIQOG, ove ces sccccccccccccscceess Resp. App. 20
EMERGENCY MOTION FOR STAY AND
CONTINUANCE OF JUNE 6, 2008 HEARING
FILED BY PETITIONER. JUNE 3, 3008
SF sptahe eas eager g Hien Si inkgetaad DUaAiaa anneal daenin Resp. App. 22
JUNE 6, 2008 JOR ORDER GRANTING SOLE
LEGAL AND PHYSICAL CUSTODY TO
SEITE « cecionivas acevécunsakseessuadensoss Resp. App. 27
JUNE 6, 2008 JDR ORDER STATING REASONS
FOR CUSTODY ORDER. ..................... Resp. App. 31
NOTICE AND MOTION TO DISMISS FILED BY
RESPONDENT, OCTOBER 10, 2008.. Resp. App. 33
DECISION AND ORDER DENYING PLAINTIFF'S
COMPLAINT FOR INJUNCTIVE RELIEF ON
GROUNDS OF MEDICAL NEGLECT, KING V.
PFEIFFER, DR Case No. 2009 DRB 1169,
PPT ES By BOO. cs ccsecscccsccescscoecaceces Resp. App. 38
RULE 5A:3 OF THE RULES OF THE SUPREME
COURT OF VERGIINIA: ooicccccccccciscesnces: Resp. App. 53
vl
TABLE OF AUTHORITIES
CASES:
Condrey v. Childress, 203 Va. 755, 127 S.E.2d 150
PINT ccl cis sbe cessaacahabheodedabedeuadscdiiesmiianuimesuaasexmibeken 23
Fairfax County Department of Human Development
v. Donald, 251 Va. 227, 467 S.E.2d 803 (1996)....... 22
Haywood v. Commonwealth, 15 Va. App. 297, 423
ee ss oils clan cedadegbennieuneunibeabaaiens 22
Lassiter vu. Department of Social Servs. of Durham
Cty., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 650
IIT £25 Sead (haubacusiauior ukideheghstnsdicaabeaennnaiesadeanoeininents 18
Lawrence v. Nelson, 200 Va. 597, 106 S.E.2d 618
tg RE ER eae AP Ar BRAS Oe EET Ry ERR E RIOR EPO 23
Leisge v. Leisge, 224 Va. 303, 296 S.E.2d 538 (1982)
PEEP SA AES POE SEO EEA IR ROO PT REECE Pe ER Ee SE Ea PeMTT 20
Long v. Commonwealth, 7 Va. App. 503, 375 S.E.2d
ER ee a ne Oe RR Nee I RS arene Oe 22
M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 1386
so a case au ssendasoasenenaueel 17,18
Moore v. Smith, 177 Va. 621, 15 S.E.2d 48 (1941)
Sa ie ae ola ag Rae en gti ead voui acess Een eud sins 21
Pfeiffer v. King, Case No. J-31848-01 (Arlington
County Juvemle and Domestic Relations Court,
re oe ganeuten ek Sadeneecarseusenanciachs 5
Robertson v. Commonwealth, 181 Va. 20, 537 S.E.2d
et ge edad sceha ecceubeanebieeerneeene 20
Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41
ee ceverececdaccnedeessusssaccecestsent Re)
Sasson v. Shenar, 276 Va. 611, 667 S.E.2d 555
vil
ERE REOSIeER SALE ia enee aN eae ere rae Peo 14
Shank v. Department of Social Services, 217 Va. 506,
Se EO oii sa scan pnndnsamibansniavosvckaseunen 19
Stanley v. Dep’t of Social Services, 10 Va. App. 596,
395 S.E.2d 199, (1990), affd by Stanley v. Fairfax
County Dept. Of Social Services, 242 Va. 60, 405
I iv oc deu ra waaauisannsheeabahesenenentahein 23
Venable v. Venable,
2 Va. App. 178, 342 S.E.2d 646 (1986). ...............0... 21
STATUTES:
Maryland Family Law Code §4-504 ....................65. 10
Maryland Family Law Code §9.5-209. ...................... )
SE IG 5 siccsiedecccusasennconssndanestncvaneeabecsanens 23
Re vieccncenedseneisunatscpadarsdsivesstecuecwtaraones 19
ey I ci occdcivesivessoacedconsenesessencens 14, 18, 22
oa docasnniccnbh vencnaciccuptveoenceventapenenas 15
i I OE BO I a os iss csaviicekecdasecasescassceekesdaeonss 17
Wh, Ce a Fs 0 BAe cckcncrs creep ievecncsvcarescescsecanenens 16
RULES:
Rule 4:15(b)
Rules of the Supreme Court of Virginia. ................. 15
Rule 5:A:19(b)(1)
Rules of the Supreme Court ...............ccccccccceeeueeeeeees 16
Rule 5A:3(c)
Rules of the Supreme Court of Virginia ........... 16, 22
OPINION BELOW
The opinion of the Virginia Supreme Court
dismissing the appeai from the Virginia Court of
Appeals is unpublished. (Pet. App. 20). The opinion of
the Virginia Court of Appeals denying rehearing is
unpublished. (Pet. App. 19). The opinion of the Virginia
Court of Appeals dismissing the appeal from the
Circuit Court is unpublished. (Pet. App. 18). The
opinion of the Circuit Court of Arlington County
denying appeal is unpublished. (Pet. App. 15). The two
June 6, 2008 orders of the Arlington County Juvenile
and Domestic Relations Court are unpublished. (Resp.
App. 27, 31).
A series of unpublished orders is also relevant to
this action. The April 8, 2008 order of the Arlington
County Juvenile and Domestic Relations Court is
unpublished. (Resp. App. 20). The two February 21,
2008 orders of the Arlington County Juvenile and
Domestic Relations Court are unpublished. (Resp. App.
14, 18). The two February 8, 2008 orders of the
Arlington County Juvenile and Domestic Relations
Court are unpublished. (Resp. App. 10, 12). The
January 17, 2008 order of the Arlington County
Juvenile and Domestic Relations Court is unpublished.
(Pet. App. 1). The November 8, 2007 order of the
Arlington County Juvenile and Domestic Relations
Court is unpublished. (Res. App. 8). The two
September 5, 2007 orders of the Arlington County
Juvenile and Domestic Relations Court are
unpublished. (Resp. App. 1, §).
2
STATEMENT OF JURISDICTION
The Supreme Court of Virginia issued its opinion
on August 18, 2009. This court has jurisdiction under
28 U.S.C. §1257.
STATUTORY PROVISIONS INVOLVED
Va. Code §16.1-106, Appeals from courts not of
record in civil cases is set forth at Pet. App. 21. Va.
Code §17.1-410, governing the jurisdiction of the
Virginia Supreme Court to hear appeals from the
Virginia Court of Appeals, is set forth at Pet. App. 22.
Rule 5A:3(c) of the Rules of the Supreme Court of
Virginia governing the timing of filing petitions for
appeal! is set forth at Resp. App. 53.
STATEMENT OF THE CASE
Petitioner falsely asserts that her experience as an
impoverished, pro se litigant subjected to arbitrary ex
parte rulings has exposed constitutional flaws in
Virginia's system for handling child custody cases in its
Juvenile and Domestic Relations Court (JDR). The
record, persistently mischaracterized by petitioner,
shows that petitioner was far from impoverished and
represented by six lawyers at six hearings in the case
below.' The allegedly ex parte hearing in the JDR
Court of which she complains was properly noticed and
took place in open court. Petitioner chose not to attend,
even though her attendance had been compelled.
Each of the JDR court orders lists attorneys present
who were representing the parties
3
Petitioner's failure to obtain plenary appellate review
was caused by her failure to meet statutory deadlines.
Petitioner raises no salient constitutional issues.
Generalized complaints about the alleged
mistreatment of pro se litigants do not apply in this
case where petitioner was so substantially represented
by counsel,
While petitioner dismissively characterizes the
Juvenile and Domestic Relations Court as “not of
record,” a voluminous record was created which amply
demonstrated that the actions of that court were
warranted. The JDR Court held seven hearings. A
trained and certified guardian ad litem, who was
appointed to represent the interests of the child
interviewed petitioner, respondent and the child,
attended five hearings, and advised the court at each
hearing she attended. In addition, an Arlington County
probation officer, pursuant to court directive,
conducted home visits related to child custody and
safety issues and prepared reports. Additional
interviews of petitioner, respondent, and child were
conducted by a court-appointed psychologist. None of
this is hinted at in the Petition. After participating
vigorously with counsel in the process, petitioner chose
not to attend tie critical June 6, 2008 hearing because
she faced sentencing for contempt arising from
violations of numerous court orders and, of more
import, she was that very day absent from the
jurisdiction while committing the felony child
kidnapping for which she was subsequently convicted.
In fact, the record shows that the court system of
which petitioner complains did an admirable job in
handling the case of a clearly disturbed litigant
engaging in illegal conduct and egregious forum
shopping. In the series of hearings which the petition
does not address, the judge, child protection personnel
and the guardian ad litem all took measured and
lawful steps to protect a child placed at risk by her
mother. The Virginia court system, and the cognate
court system in Maryland, each reached similar
decisions concerning petitioner, about whom a
Maryland child protective services official testified
under oath on June 5, 2008 “This women’s behavior
concerned me to the point that I felt it, that I need the
Court to help me protect this child.” Petitioner
responded to professional assessments questioning her
version of events by avoiding psychological evaluations,
attempting to change jurisdictions at least four times,
and, eventually, engaging in felony child abduction.
The full record shows how seriously petitioner has
mischaracterized the facts at every stage. 2
I. The JDR Court Holds Extensive Hearings at
Which Petitioner ls Represented by Counsel
Before Determining Custody.
It is important to recognize how this case came to
be in Virginia. On June 16, 2007, Dr. Michael Pfeiffer
returned from a short business trip to find his house
deserted, most belongings removed, and his wife and
daughter gone. He had a number of brief ceil phone
conversations with the petitioner, who refused to
Because Supreme Court Rule 15.2 requires that a
respondent “address any perceived misstatement of fact or
law in the petition that bears on what issues properly would
he hefore the Court if certiorari were granted,” this
t
Statement of the Case is necessarily lengthy
5
reveal her whereabouts. He was allowed two one hour
visits with his daughter. Petitioner filed for a
protective order against respondent in the District of
Columbia. At the hearing on that order — which was
dismissed - petitioner was served with a complaint
seeking divorce, custody and support. Pfeiffer v. King,
Case No.07- DR-B2056, (Superior Ct. DC, Family
Division) Petitioner appeared, represented by counsel,
at a hearing on August 1, 2007 and stated that she had
moved to Virginia and taken a one year lease on an
apartment at 4001 North 9" Street, Arlington Virginia.
This is a far cry from the “emergency temporary
housing” described at Page 4 of the Petition. Petitioner
stated under oath that she intended to domicile
indefinitely in Virginia. Her counsel told the Supenor
Court that jurisdiction over custody resided solely in
the Arlington Juvenile and Domestic Relations Court.
Petitioner Initially Participates in the JDR
Proceedings with Counsel and Does Not Raise
Any Jurisdictional Objections. Based on
Petitioner's testimony before the District of Columbia
court and her July 2007 move to Virginia, respondent
filed the underlying case in the Juvenile and Domestic
Relations Court for Arlington County, Virginia on
August 9, 2008 seeking visitation and other relief.
Pfeiffer v. King, Case No. J-31848-01 (Arlington County
Juvenile and Domestic Relations Court). A hearing
was held before the court on September 5, 2007.
Petitioner appeared at the hearing, represented by
attorney Daniel Dannebaum. At the hearing, the court
entered an agreed order providing for primary physical
custody with petitioner, granting petitioner temporary
child support, and providing respondent with
6
visitation. (Resp. App. 1). The court ordered a full
custody evaluation of the parents and child by a
psychologist and selected the psychologist nominated
by petitioner’s counsel. (Resp. App. 6). Petitioner did
not object to the jurisdiction of the Virginia court.
Pursuant to the September 5, 2007 Order, the
evaluations by a psychologist were begun on the
parents and the child. The _ court-appointed
investigator, probation officer Michelle Woods, who
conducted the home study also ordered by the court,
requested that a guardian ad litem (GAL) be appointed
to represent the interests of the child. Deborah Olin
was appointed as GALon or about September 26, 2007.
Petitioner Begins a Pattern of Non
Compliance with the JDR Court Orders. As the
process of custody evaluation moved forward,
petitioner had an initial meeting with Dr. Lane, the
court-appointed psychologist. After that meeting she
suggested to respondent that he be given more
visitation rights and the case be dropped. Respondent
replied that he wanted the evaluations to be completed.
Petitioner then asked both the court investigator and
the GAL to deny the respondent visitation.
When petitioner learned that the investigator and
GAL would not make such recommendations, she
unilaterally and without notice rented an upscale
home in Potomac Maryland on October 16 2007. This
violated the September 5, 2007 court order which
provided that the child could not be moved out of state
unless the other parent consented or the court
approved. Petitioner filed a pro se complaint for divorce
in Maryland on October 19, 2007 claiming she was a
J
Maryland resident. This was clearly an attempt by
petitioner to game the system and get away from the
jurisdiction of a court she perceived to be unfriendly.
The court appointed investigator and GAL both
conducted a home visit with petitioner and the child in
Virginia after October 16, 2007 and were not informed
of the Maryland move. At the scheduled November 8,
2007 hearing, petitioner was represented by attorney
Raymond Benzinger. The GAL also appeared. The
court issued an order continuing the custody hearing
until February 8, 2008 because the psychological
evaluation of petitioner had not been completed. (Resp.
App. 10). Petitioner was ordered not to take the child
out of the country. (Resp. App. 8). Neither petitioner
nor her counsel disclosed the Maryland house or the
Maryland divorce proceeding at this hearing.
On November 20, 2007 and November 30, 2007,
petitioner, through attorney Bensinger, filed motions
to dismiss the JDR case for lack of jurisdiction. The
motions were heard on January 17, 2008. Petitioner
was represented by attorney Bensinger at that
hearing. Because there was no dispute over the
underlying material facts, no testimony was needed or
taken. The motions were denied and the court
continued to exercise jurisdiction over the matter. (Pet.
App. 1). The GAL attended this hearing.
Petitioner Claims that Georgia Should Have
Jurisdiction. In late January 2008, petitioner took
the child to Atlanta, Georgia in violation of the
September 5, 2007 order, allegedly because petitioner’s
mother was ill. While in Georgia, petitioner retained
counsel, who identifying herself as a Georgia guardian
8
ad litem, made a filing with the Virginia JDR court
recommending that Georgia be the jurisdiction in
which custody and visitation rights were determined.
At the noticed February 8, 2008 hearing, petitioner
appeared in court represented by attorneys Michael
Miller and Elizabeth Latuseck, having left the child in
Georgia. The JDR court issued an order that the
mother return the child to Dr. Pfeiffer by February 10,
2008 and ordered that petitioner cooperate with a
psychological evaluation. (Resp. App. 10). The JDR
court found that petitioner had not cooperated with the
GAL who was present at the hearing. The case was
continued to April 18, 2008.
Petitioner returned the child to respondent on
February 10, 2008 as ordered. Two days later she
presented the police in the District of Columbia with
the now partially superseded September 5, 2007
temporary custody order to have the police take the
child from Dr. Pfeiffer arid give her physical custody
over the child. Petitioner did not disclose to the police
that the court had ordered that she return the child to
Dr. Pfeiffer.
The JDR Court Grants Temporary Physical
Custody to the Father. At a hearing on February 21,
2008, the JDR issued an order changing temporary
physical custody from petitioner to Dr. Pfeiffer. (Resp.
App 14). Petitioner was represented by attorney John
Drury. The GAL was present. The custody case was
continued to April 18, 2008. A rule to show cause was
set for April 8, 2008 because petitioner had not
complied with previous orders. (Resp. App. 18).
9
The JDR Court Holds a Lengthy Hearing on
Petitioner’s Contempt on April 8, 2008. On April 8,
2008, the JDR court held a hearing to determine
whether the actions of the petitioner constituted
contempt. The petitioner appeared represented by
attorney Michael Callahan. The hearing transcript
runs 147 pages; petitioner testified at length. The
Court found the petitioner in contempt for taking the
child to Georgia, for removing the child from the
father’s custody, and for failing to cooperate with court
appointed personnel. After finding the petitioner in
contempt, the court continued the case for disposition
until it had a chance to review the psychological
evaluation. It set a hearing for June 6, 2008. (Resp.
App. 29).
Petitioner Improperly Uses an Ex Parte
Hearing in Maryland to Temporarily Gain
Custody, but Loses Custody After a Hearing on
the Merits. On June 2, 2008, petitioner, after again
taking her child in violation of a Virginia custody
order, appeared at the Montgomery County Circuit
Court alleging that her daughter had been abused and
asking for a Protective Order to keep Dr. Pfeiffer from
having custody. Petitioner concealed from’ the
Maryland court the existence of the Virginia case, that
a guardian ad litem had been appointed to represent
the child, the extensive investigations which had been
made in Virginia or the reports submitted by the GAL
to the Virginia court. ;
3
The failure to make these disclosures was a violation
of Maryland Family Law Code §9.5-209, a portion of the
Meryland Uniform Child Custoay Jurisdiction and
Enforcement Act, which requires that the initial pleading,
10
The Montgomery County Circuit Court issued an ex
parte temporary protective order granting petitioner
custody on June 2, 2008. A motion to vacate was filed
and noticed for June 5, 2008. Pursuant to Maryland
law, the child was interviewed by Montgomery County
Child Protective Services.
At the hearing on June 5, 2008, petitioner, who had
filed a response to the motion to vacate, failed to
appear. Judge Craven, hearing the case, took
testimony from Elizabeth Ann Hoffman, supervisor of
the Child Sexual Abuse Investigation Unit for
Montgomery County Child Protective Services (CPS).
Ms. Hoffman, in addition to noting that interviews
with the child showed no indication of abuse, testified
as follows about the behavior of the petitioner at her
offices near the courthouse on the morning of the
scheduled hearing:
She was extremely inappropriate in the
confines of our office and she — to the point of
alarming me. Now, Your Honor, I’ve been
doing this work for 13 years and I am not an
alarmist. I see lots of bizarre behavior from
parents, lots of highly, you know agitated
individuals, hostile people, that’s what we do.
or an attached affidavit, in any child custody proceeding
state whether the party bringing the action has participated
in any other proceeding concerning the custody of or
visitation with the child and knows of any other proceeding
that could affect the proceeding being filed. To the extent
that the June 2, 2008 filing might be deemed a petition for
relief from abuse, Maryland Family Law Code §4-504 also
requires disclosure of previous and pending actions between
the parties.
1}
This women’s behavior concerned me to the
point that I felt it, that I need the Court to help
me protect this child.
We missed Ms. King by, and when I say we,
Ms. Catron and I had decided to intervene and
remove, change the location of the child versus
the mother. When we, after we made that
decisions, she had left the office by, say 90
seconds. She knew she had to be in court this
morning and what she told my social worker
was that “I’m an adult, I can ---“
Transcript of Hearing, Ariel R. King v. Michael Pfeiffer,
Case No. 70620-FL (Montgomery Circuit Court. June
5, 2008) p. 13.
After hearing this testimony and similar testimony
from Janel Catron, the social worker who interviewed
the child, the Court vacated the temporary protective
order and dismissed the case. The Court found that
petitioner knew about the hearing and that there was
reason to believe the testimony she gave to secure the
initial temporary order was false."
4
In a lengthy footnote (Pet. at 7, fn. 6), petitioner
asserts that the June 5, 2008 Montgomery Circuit Court
hearing was also defective and that the June 2, 2008 order
was “prematurely quashed.” It is clear that petitioner set up
the initial June 2, 2008 ex parte hearing and utilized the
“nuclear option” of falsely alleging sexual abuse as a
stratagem to derail the June 6, 2008 hearing 1n Virginia.
The testimony of the two Montgomery County Child
Protective Service personnel puts to rest any allegations of
improper behavior by Dr. Pfeiffer. It also established that
petitioner was aware of the June 5, 2008 hearing and chose
12
Petitioner, Having Abducted Her Child,
Chooses Not to Appear at the Scheduled June 6,
2008 Hearing. By the time of the scheduled June 6,
2008 hearing, petitioner had improperly kept the child
for five days, in violation of the February 21, 2008
Custody Order. She failed to appear at the hearing.
The Petition characterizes the hearing as “ex parte”
and without proper notice. Not only was notice of the
hearing given at the April 8, 2008 hearing and
contained in the order, but petitioner obviously knew
about it because she filed a Motion to Continue the
hearing on June 3, 2008. (Resp. App. 22). The bases for
her motion to continue were a pending mandamus
petition to the Virginia Supreme Court and a Maryland
investigation into alleged sexual abuse by the father.
The first was invalid as mandamus does not lie to
contest jurisdiction. The second was found to be
without merit by both the Maryland court and the
Montgomery County CPS.
The petitioner, who had appeared at six hearings
represented by counsel, would have this court believe
that her failure to appear before the court on June 6,
2008, when she was scheduled to be sentenced for
contempt of court, somehow made the entire JDR
process ex parte and transformed her into a pro se
litigant whose rights were abused. The petitioner also
asserts that this process victimized her daughter,
ignoring the fact that the child ~ whose needs are
properly the focus of a custody dispute — was
represented at the June 6, 2008 hearing by the GAL
not to attend. In fact, she bolted from the CPS facility as
soon as she realized that the professionals there had doubts
about her fitness to care for the child.
13
and that the court had, by this time, extensive reports
from the court investigator ana the GAL.
The Court, reviewing these reports and petitioner's
continuing contumacious and erratic behavior,
awarded sole custody of the child to Dr. Pfeiffer. The
Court issued two orders. In one of them, it found that
“(Mjother has abducted child and mother exhibits
behavior to Montgomery County CPS which made the
agency concern for child’s safety.”” (Resp. App. 31). In
light of petitioner’s behavior, this was a completely
reasonable decision. The GAL agreed to the order. The
order did not, as the Petition asserts repeatedly,
terminate parental rights. It gave Dr. Pfeiffer sole
custody and denied petitioner access to the child until
petitioner had availed herself to the court, purged
herself of her contempt and completed a psychological
evaluation.
Petitioner remained a fugitive with the child until
June 16, 2008 when she was apprehended in New
York. Petitioner’s claim that she was merely seeking
medical evaluation for her child in New York is
without credibility.® Taking a purportedly ill child on
the road for more than a week rather than immediately
Petitioner, unaccountably, did not include this order
in its appendix, but did include the other order issued that
day which does not contain the explanatory material. (Pet.
App. 2.)
7 A complete examination of the child’s medical
condition and refutation of claims that Dr. Pfeiffer ignored
his daughter’s medical condition is found in the December
2, 2009 decision of the District of Columbia Superior Court
in King vu. Pfeiffer, DR Case No. 2009 DRB 1167. (Resp. App.
38).
14
to a medical facility hardly qualifies as being in the
interests of the child. Petitioner lived within miles of a
half dozen world-class medical institutions where she
could have sought evaluation or treatment for the
child. Petitioner was fleeing to avoid the existing and
prospective rulings of the JDR.’ If petitioner felt the
child needed medical care which was not being
provided, she could have raised the issue with either
the GAL or the court.
II. Petitioner’s Untimely Appeal of the JDR
Order Is Rejected By The Circuit Court at a
Noticed and Scheduled Hearing.
Throughout the petition, it is properly asserted
that the June 6, 2008 order was a “final order.” Nearly
four months later, on September 26, 2009, petitioner
filed a motion for a de novo review in the Circuit Court.
Va. Code §16.1-296° states that such an appeal shall be
: Petitioner claims she was “forced to plead guilty to
parental kidnapping.” Pet. at 8, fn 6. Petitioner was
sentenced on April 6, 2009 for the felony of child abduction
out of the state. State v. King, Nos. 111333 Crim. and
111512 Crim. She was represented by attorneys Alex
Foster, David Helfrey, and Roy Morris. She was asked by
the court “Is anybody forcing you or threatening you to
plead guilty this afternoon?” She answered “No, sir.”
, In her brief, petitioner relies on Va. Code §16.1-106,
Appeals from court not of record in civil cases. Pet App. 21.
The Virginia Supreme Court has held that appeals from
JDR court are governed by Va. Code §16.1-296. Sasson v.
Shenar, 276 Va. 611, 626 fn. 10, 667 S.E.2d 555, 563 (2008).
The statute provides “|F]rom any final order or judgment of
the juvenile court affecting the rights or interests of any
person coming within its jurisdiction, an appeal may be
15
filed “within ten days after such order or judgment.” 9
The time for appeal expired on June 16, 2008. The
September 2, 2008 motion could not be considered a
motion for a new trial or rehearing such that an appeal
could trigger a de novo review of the June 6, 2008
hearing. Pursuant to Va. Code §16.1-97.1, a new trial
of a judgment of a district court must be filed within
thirty days of the judgment and ruled on within forty-
five days of the judgment.
On receiving the untimely notice of appeal, counsel
for Dr. Pfeiffer filed a motion to dismiss on October 10,
2008. (Resp. App. 33). The motion was served on
petitioner and set, in accordance with the Rules of the
Supreme Court of Virginia, to be heard at the next
regular Friday motion’s day, which was October 17,
2008.*° Petitioner chose not to appear. The matter was
heard in open court and as the defect in the appeal
being facially apparent, the appea) was dismissed.
taken to the circuit court within 10 days from the entry ofa
final judgment..” Both provisions require an appeal within
ten days.
, Petitioner apparently contends that the September
26, 2008 Notice of Appeal was timely because it was filed
within ten days of the September 16, 2008 denial (Pet. App.
12) of the September 2, 2008 motion filed by Dr. King. But
the time to appeal the June 6, 2008 order had expired on
June 16, 2008 and could not be revived by a motion filed
seventy-eight days after the order had become final and
unappealable.
on Motions may be brought before the Circuit Court on
seven days written notice. Rule 4:15(b) of the Rules of the
Supreme Court of Virginia.
16
III. Petitioner’s Appeals to the Virginia Court of
Appeals and Virginia Supreme Court Are
Properly Rejected.
Petitioner filed a Notice of Appeal with the Virginia
Court of Appeals on October 19, 2008. After the record
was received by the appellate court, petitioner received
a notice that the filing deadline or the opening brief
was February 23, 2009.
Rule 5:A:19(b)(1) of the Rules of the Supreme Court
of Virginia requires that opening briefs shall be “filed
in the office of the clerk of the Court of Appeals.” Rule
5A:3(c) provides that any document required to be filed
in the office of the clerk “shall be deemed to be timely
filed if it is mailed postage prepaid to the Clerk of the
Court of Appeals by registered or certified mail and if
the official receipt thereof be exhibited upon the
demand of the clerk or any party and it shows mailing
within the prescribed time limits.” (Resp. App. 53).
Petitioner asserts that she mailed the brief on
February 23, 2009 by regular mail, not certified or
registered mail. The court received the brief on
February 25, 209 and rejected it as untimely in an
order dated March 17, 2009. Respondent played no role
in the rejection. A petition for rehearing was denied.
The rule is clear and direct. Petitioner did not
follow it.
A subsequent appeal was filed with the Virginia
Supreme Court. Va. Code §17.1-410(A)(3) generally
prohibits appeal to the Virginia Supreme Court of final
decisions of the Virginia Court of Appeals in custody
cases. The Virginia Supreme Court has the option of
17
accepting such otherwise unappealable cases if it
“involves a substantial constitutional question as a
determinative issue or matters of significant
precedential value.” Va. Code §17.1-410 (B). The
dismissal of the petition cites both provisions.
REASONS TO DENY THE PETITION
As the overview of the record presented above
makes clear, this is a case involving extraordinarily
damaging behavior by the petitioner, including child
kidnapping and baseless claims of child sexual abuse.
It is not an example of an “epidemic problem” in state
family law courts. Nor is this a case in which the state
law procedure discriminates against pro se parties.
Petitioner was represented by a phalanx of lawyers
before the JDR court. Her failure to appear for
sentencing on contempt did not convert this to a pro se
case. Furthermore, the so-called lethal combination of
court orders terminating parental rights and capias
orders threatening imprisonment is not a violation of
due process. Courts have the right to hold litigants in
civil contempt when they have been adjudicated to
have violated court orders. ‘The enforcement of
contempt orders is a proper judicial function necessary
for the administration of justice, not a violation of due
process.
A. Petitioner Was Not Denied Equal
Protection in Seeking an Appeal.
Petitioner asserts that M.L.B. v. S.L.Jd., 519 U.S.
102, 117 S.Ct. 555, 136 L.Ed.2d (1996) stands for the
proposition that the state may not unfairly erect
barriers to appeal. She claims that because she was pro
18
se and because she was subject to imprisonment for her
contempt, constitutionally impermissible barriers were
present.
M.L.B. is not relevant to this case. M.L.B. dealt
with economic barriers. An indigent mother whose
parental rights had been terminated was denied an
appeal because she could not pay for a required
transcript. Her application to appeal in forma pauperis
was rejected.
The Supreme Court held that where an appeal was
allowed, the state could not “cut off appeal rights for
indigents while leaving open avenues of appeal for
more affluent persons.” 519 U.S.at111,17S.Ct. at 561
quoting Ross v. Moffitt, 417 U.S. 600, 607, 94 S.Ct.
2437, 2442, 41 L.Ed.2d 341 (1974). There are no
constitutionally infirm economic barriers present
here.'’ Unlike M.L.B., petitioner did not seek to be
treated in forma pauperis or submit to an examination
of her finances.
Furthermore, M.L.B. dealt with a very specific
proceeding, the termination of parental rights, which
the court described as “a unique kind of deprivation.”
519 U.S. at 118, 117 S.Ct. 565 quoting Lassiter v.
Department of Social Servs. of Durham Cty., 452 U.S.
18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 650 (1981). But the
court carefully distinguished termination of parental
rights “from other domestic relations matters such as
divorce, paternity, and child custody.” 519 U.S. at
In Virginia, de novo appeal of must JDR rulings is
exempt from the posting of an appeal bond. Va. Code §16.1-
296(H)
19
127, 117 S.Ct at 569. The clear implication is that the
equal protection analysis applied in M.L.B. would not
apply to such cases.
Although petitioner describes the June 6, 2008
JDR order as a “termination” of her parental rights
throughout the petition, that is not what occurred.
Petitioner lost custody, not her parental rights. The
June 8, 2008 order clearly established a regime by
which petitioner could regain some access to her child
by availing herself of the court, and completing a
psychological evaluation.'* There was no termination
of parental rights as occurred in M.L.B. Petitioner
retains the right to apply for a change in the order
based on change in circumstances and, in fact, has
done so.
There are no equal protection issues here and
M.L.B. does not apply. Petitioner was not pro se, she
had six lawyers. She presented no evidence to any
court that she was impoverished. The case did not
result in termination of parental rights, but rather an
award of custody with justifiable prerequisites to the
resumption of visitation rights.
B. Petitioner Was Not Deprived of Due
Process Because She Was Facing Penalties for
Contempt.
The fact that petitioner was subjcct to penalties for
By contrast, the Virginia parental rights termination
statute, Va. Code §16.1 283 would provide no avenue of
return to custody. After termination, the parent “becomes a
legal stranger to the child.” Shank v. Department of Social
Services, 217 Va. 506, 509, 230 S.E.2d 444, 4457 (1976)
20
contempt arising from her repeated violations of court
orders does not implicate either equal protection or due
process issues. Petitioner describes a “Catch-22”
situation because she purportedly could not exercise
her rights to a de novo appeal because she would have
been arrested. But this is a situation which applies to
anyone who has been convicted of an offense or held in
contempt. Petitioner cites not a single case to support
her position that she was deprived of duc process
because she was subject to arrest.’®
Petitioner would have the Court believe that
because she fled the jurisdiction she should have more
rights than if she had appeared at the June 6, 2008
hearing and been sentenced for contempt. The capias
orders of which petitioner complains simply
commanded her appearance before the JDR court, by
arrest if necessary. Bench warrants are issued every
day by trial courts. They do not deprive litigants of due
process. They command the appearance of the absent
party at a hearing where they will be accorded due
process. The capias orders did not impose a sentence
on petitioner. Any sentence would have come after the
hearing and would have been subject to appeal. The
appropriate course when faced with a contempt order
with which one disagrees is to comply and appeal.
Leisge v. Leisge, 224 Va. 303, 307, 296 S.E.2d 538, 540
(1982); Robertson v. Commonweath, 181 Va. 20, 25 537
S.E 2d 352, 359 (1943).
The procedure by which petitioner was adjudicated
13
In the instant case, petitioner was able to file her
Notice of Appeal without being imprisoned. She lost her
right to a de novo appeal because she made a late filing
21
to be in contempt did not violate uue process. The key
components of due process are notice and an
opportunity to be heard. Moore v. Smith, 177 Va. 621,
626, 15 S.E.2d 48, 49 (1941). Where a party has the
opportunity to present testimony but chooses not to do
so, there is no denial of due process. Venable v.
Venable, 2 Va. App. 178, 182, 342 S.F.2d 646, 649
(1986).
C. The JDR Decision Was Not Arbitrary,
Contained Findings of Fact, and Was Based on
Substantial Evidence.
By omitting the June 6, 2008 order (Resp. App. 31)
in which the JDR court stated that petitioner had
abducted her child and the Montgomery County Child
Protective Services officials had expressed concern for
the child’s safety, petitioner makes the claim the JDR
order “was arbitrary, without reason or finding of fact”
(Petition 18), “was a one line order with no finding of
substantial evidence” (Petition 21) and “was without
any evidentiary hearing of record.” (Petition 21).
The JDR court made findings of fact in the order
that petitioner did not place in her appendix. The court
had available to it extensive testimony, including
testimony by the petitioner while represented by
counsel, which had taken place in the six prior
hearings. The findings related to abduction were
admitted to be correct when petitioner pled guilty to
felony child abduction.
22
D.Petitioner Was Not Denied Any Due
Process Rights When Her Untimely Appeal Was
Dismissed by the Circuit Court.
The time to appeal the June 6, 2008 order expired
on June 16, 2008. Va. Code 16.1-296. The failure to file
a timely appeal is jurisdictional. The Circuit Court was
therefore without jurisdiction of any kind. Fairfax
County Department of Human Development v. Donald,
251 Va. 227, 229-230, 467 S.E.2d 803, 804 (1996).
EK.The Denial of the Appeal to the Court of
Appeals Was Appropriate and Not a Denial of
Due Process.
Rule 5A:3(c) could not be more clear. The party
filing a brief must send it by certified or registered
mail if the document will not be received in the office
of the clerk by the deadline. Petitioner, who has a
Ph.D., should have been able to understand this
language.
The Virginia Court of Appeals has long had a policy
of requiring strict adherence to filing deadlines, as do
most appellate courts. The Court of Appeals has
previously addressed this issue. Long v.
Commonwealth, 7 Va. App. 503, 506, 375 S.E.2d 368,
369 (1988). (“Since the Rule specifically lists the
appropriate mailing methods without mentioning first
class mail as an alternative, we must presume that
method is intended to be excluded.”) Accord, Haywood
v. Commonwealth, 15 Va. App. 297, 298, 4223 S.E.2d
202, 203 (1992)
Other than reference to her suspect pro se status,
petitioner had given no basis to support the position
23
that strict application of appellate deadlines is a denial
of due process. The rules governing appeal procedures
are mandatory and “compliance with them 1s necessary
for the orderly, fair and expeditious administration of
justice.” Condrey vu. Childress, 203 Va. 755, 757, 127
S.E.2d 150, 152 (1962) quoting Lawrence v. Nelson, 200
Va. 597, 598, 106 S.E.2d 618, 620 (1959).
F. The Rights of the Child Were Respected
and Protected.
Petitioner asserts that her six year old child is the
“victim” of the alleged constitutional violations and two
of the “Questions Presented” relate to purported
denials of the child’s constitutional rights. The child is,
of course, not a party to this appeal and the petitioner
never describes in just what context the child’s rights
are being advanced by this litigation.
The fact is that the child was represented through
this process by a guardian ad litem. The guardian ad
litem is required to have training in the roles,
responsibilities and duties of that position, and a
background demonstrated proficiency in juvenile law.
Va. Code §16.1-266. His or her primary duty is “to
represent vigorously the infant ... fully protecting that
individual's interests and welfare.”Stanley v. Dep't of
Social Services, 10 Va. App. 596, 603, 395 S.E.2d 199,
202-03 (1990), affd by Stanley v. Fairfax County Dept.
Of Social Services, 242 Va. 60, 405 S.E.2d 621 (1991).
The GAL participated fully in the case before the JDR
and concurred in its ruling.
Both the JDR and the Montgomery County Child
Protective Services determined that the mother was
24
not acting in the best interests of the child. The
District of Columbia Superior Count, in Judge
Mitchell-Rankin’s December 2009 opinion, found that
respondent provided the child with excellent medical
care and that petitioner’s claims of neglect were
unfounded. (Resp. App. 50-51).
To the extent that the child has been deprived of
access to her mother, it is not because of some
constitutional violation. Petitioner has always carried
the keys to resolve this matter in her own pocket. She
has only to avail herself of the JDR and complete her
psychological evaluation. This she steadfastly refuses
to do, instead multiplying litigation. There is no
constitutional violation,
CONCLUSION
The petitioner was well represented below.
Numerous hearings were held. She chose not to attend
the critical June 6, 2008 hearing because she was in
the process of flouting the JDR court’s order while
committing felony child abduction. She is not pro se.
Her parental! rights were not terminated. She was not
denied the right to appeal. Her appeals were untimely
and properly denied. No constitutional issues have
been raised. The petition for certiorari should be
denied.
Respectfully Submitted,
David Charles Masselli, Esq.*
Masselli PC
4113 Le Highway
Arlington, VA 22207
(703) 741-0402
Sean W. O’Connell, Esq.
Law Offices of Sean W. O’Connell
4113 Lee Highway
Arlington, VA 22207
(703) 558-0000
Counsel for Respondent
* Counsel of Record
December 21, 2009
Resp. App. 1
VIRGINIA:
IN THE JUVENILE AND DOMESTIC
RELATIONS DISTRICT COURT
FOR THE COUNTY OF ARLINGTON
Case No.(s): J-31848-01.
Michael H. Pfeiffer Petitioners,
Vv.
Ariel R. King
In re: {Name Of Minor Child Omitted]
Respondents.
INITIAL ORDER
THIS ORDER IS BINDING UPON YOU. You
should read and understand the entire order. If you
do not understand the order you should seek legal
counsel. Failure to follow the terms of this order may|
result in you being found in contempt of court.
Because matters of support and/or custody of children
are pending in this court, all parties are ORDERED
as follows:
GETTING AN ATTORNEY If you wish to be repre-
sented by an attorney, your attorney must notify the
Court of his or her representation within 14 days of
your advisory hearing. If you are unable to retain an
attorney within this time, you must notify the Court
before the above date of when you expect to get
Resp. App. 2
counsel. A lengthy extension will not be granted. You
must give the attorney a copy of this order.
CONTINUANCE POLICY (See also written policy)
1) Continuances are not favored.
2) Continuances may be granted upon a
written request stating a good reason for
the continuance.
3) Continuances will not be granted if the
request is not in writing or does not
snow a good reason for the continuance.
4) The following are not good reasons for a
continuance:
a. The failure to hire an attorney
within 14 days of service.
b. Lack of preparation.
c. Agreement of the parties without
further reason.
d. The failure to timely request dis-
covery, home study, witness sub-
poenas, or professional reports.
RULES OF CONDUCT IN CUSTODY CASES
1) If prior court orders exist which deter-
mine custody and support of the minor
child(ren), the parents are required to
abide by such prior court orders.
2) Unless specifically contradicted by prior
court orders both parents are the joint
Resp. App. 3
custodians of the child(ren) are ordered
to conduct themselves as follows until
further order of this court:
a.
Each parent shall keep the other
parent notified of his or her address
and telephone number and permit
the other party to have reasonable
contact with the child(ren) unless it
is absolutely necessary to prevent
the child(ren) or a party from harm.
If either parent denies the other
access to the child(ren) and the
Court finds such denial to be unrea-
sonable, this will be a strong factor
against that parent retaining cus-
tody of the child(ren).
The child(ren) shall continue to
attend their usual school and child-
care provider unless there exists a
compelling reason to do otherwise.
The parties shall continue in effect
all insurance policies, including, but
not limited to, health, life, auto-
mobile, and homeowner’s insurance
for the duration of the proceedings
or further order of Court.
Each parent shall consult the other,
if possible, of important health care
or educational issues involving the
child(ren). Both parents may have
access to the child(ren)’s school and
medical records.
e.
a.)
Resp. App. 4
Neither parent shall submit the
child(ren) to psychiatric or physio-
logical examination, evaluation, or
treatment without giving written
notice to the other parent. [Both
parents and child ordered to par-
ticipate in a custody evaluation. ]
Both parents have the legal duty to
provide monetary support for the
child(ren). Until the court enters a
child support order, both parents
shall contribute to the child(ren’s)
sport to the best of their ability.
[Father ordered to pay temporary
child support in the amount of
$500.00. ]
No party shall remove the child(ren)
from the State of Virginia without
the written consent of the other
party or order of this court until the
hearing. [Child is allowed to travel
within metropolitan area. Mother
allowed to travel with child to visit
with family in New Jersey, Atlanta,
and Pennsylvania to visit friend. |}
No party shall downgrade the other
party in front of the child(ren).
Temporary visitation every Wednes-
day from 6:00 p.m. to Thursday 8:00
a.m. and every other Saturday from
10:00 A.M. to Sunday at 10:00 A.M.
(to commence on 9/6/2007.) and every
other Sunday from 10:00 a.m. to
Resp. App. 5
Monday at 8:00 a.m. to commence
on 9/16/2007. Overnight visitation
will not commence until child’s
German passport is submitted to the
court.
i. Both parents ordered to take a par-
enting class
j. Court orders CSU to conduct home
visits of both parents and write a
custody evaluation.
ABUSIVE CONDUCT
Neither party shall harass the other party,
call or appear at the other parties’ place of
employment except as necessary for the well
being of the child(ren). All parties are
required by law to refrain from any abuse
against each other or the child(ren).
RECONCILIATION
The parties or their attorneys are hereby
directed to promptly notify the Court in
writing of a reconciliation.
YOUR COMPLIANCE WITH THIS ORDER IS
MANDATORY.
Order Entered: September 5, 2007
Judge: Esther Wiggins Lyles
(cc: all parties]
Resp. App. 6
ORDER Case No.: JJ031848-01-00
Commonwealth of Virginia
ARLINGTON J&DR COURT Juvenile and Domestic
THE FOLLOWING PARTIES WERE PRESENT:
(J) Juvenile (Attorney:
_) Probation Officer [I Megiblej
_) Guardian ad Litem
CL) Father LJ Mother LJ Guardian: ___s|T
Respondent/Defendant &] Attorney: D. DANNENBAUM
(]) Commonwealth’s Attorney: __ |
Type of Case: CUSTODY |
(J Felony © Misdemeanor LJ CHINS &i Custody
Visitation L) Support CL) Foster Care LJ) Other
Type of Hearing:
LJ Determination/Appointment of Counsel
(j Detention Hearing LJ) Transfer Hearing
_) Adjudicatory Hearing (LJ Dispesition Hearing
(] Continuance () Review LJ Preliminary Hearing
[J Show Cause (J) Trial (CW Motion
ADVISORY
PLEA:
FINDINGS OF THE COURT:
Resp. App. 7
IT IS ORDERED THAT:
PARTIES ADVISED. INITIAL ORDER EN-
TERED. MUTUAL DISCOVERY ORDERED.
COURT ORDERS COURT SERVICE UNIT TO
CONDUCT A CUSTODY EVALUATION. COST
TO BE DIVIDED BETWEEN THE PARTIES.
COURT ORDERS BOTH PARENTS TO TAKE A
PARENTING CLASS AND PARTICIPATE IN A
CUSTODY EVALUATION BY A QUALIFIED
EXPERT.
TEMPORARY VISITATION AND CHILD SUP-
PORT ARE ADDRESSED IN INITIAL ORDER.
This case is continued to: 11/08/2007 @ 11:00 AM
09/05/2007 /s/ Esther Wiggins Lyles
DATE JUDGE
Resp. App. 8
ORDER Case No.: JJ031848-01-00
Commonwealth of Virginia
eee ee eee eer eee eee ee ee eee ee ee ee eee ees
() Juvenile C)Attorney:..
Probation Officer MICHELLE WOOD
Guardian ad Litem DEBORAH OLIN
C) Father (J) Mother ©) Guardian:
Petitioner/Complainant KI Attorney:
SEAN O’CONNELL |.
Kk) Respondent/Defendant & Attorney:
RAY BENZINGER
L) Commonwealth’s Attorney: CJ
Type of Case: CUSTODY...
(J) Felony OJ Misdemeanor () CHINS LC) Custody
(J Visitation (J Support LJ Foster Care L) Other
Type of Hearing:
(J Determination/Appointment of Counsel
L] Detention Hearing lJ Transfer Hearing
&) Adjudicatory Hearing CJ Disposition Hearing
L} Continuance LJ) Review LJ Preliminary Hearing
(] Show Cause [J Trial & Motion TO CONTINUE
LJ
PLEA:
Resp. App. 9
FINDINGS OF THE COURT:
IT IS ORDERED THAT:
GUARDIAN AD LITEM’S MOTION TO CON-
TINUE IS GRANTED OVER RESPONDENT'S
OBJECTION.
COURT ORDERS THAT THE CHILD REMAINS
IN THIS COUNTRY AND IS NOT ALLOWED
TO TRAVEL OUTSIDE OF THE UNITED
STATES. IF MOTHER LEAVES COUNTRY FOR
WORK, CHILD SHALL BE LEFT WITH HER
FATHER AND FATHER ORDERED TO MAIN-
TAIN CHILD IN HER GERMAN SCHOOL.
DATE JUDGE
Resp. App. 10
ORDER Case No.: JJ031848-01-00
Commonwealth of Virginia
ARLINGTON J&DR COURT Juvenile and Domestic
eee eer eee eee eee eee re ee eee
THE FOLLOWING PARTIES WERE PRESENT:
(] Juvenile Cj) Attorney:
Probation Officer MICHELLE WOOD
Guardian ad Litem DEBORAH OLIN
Petitioner/Complainant & Attorney: S. OCONNELL
Respondent/Defendant & Attorney:
MICHAEL MILLER AND LATUSEK
[] Visitation LJ Support LU) Foster Care LJ Other
Type of Hearing:
_) Determination/Appointment of Counsel
LJ Detention Hearing WU Transfer Hearing
L] Adjudicatory Hearing LJ Disposition Hearing
(] Continuance (Review LC) Preliminary Hearing
L!Show Cause (C) Trial UC) Motion |
CO)
PIE piv esiccessuccanss
Resp. App. 11
FINDINGS OF THE COURT:
IT IS ORDERED THAT:
CASE CONTINUED BECAUSE CHILD IS OUT
OF THE STATE AND THE PSYCHOLOGICAL
EVALUATION WAS NOT COMPLETED AND
MOTHER DID NOT COOPERATE WITH THE
GAL.
MOTHER ORDERED TO RETURN THE CHILD
BACK TO THE FATHER WITHIN 48 HOURS
BY 2/10/08 AT 3:00 p.m. PARTIES ARE
ORDERED TO COOPERATE WITH A FULL
PSYCHOLOGICAL EVALUATION. MOTHER
ORDERED TO COOPERATE WITH THE GAL
AND PSYCHOLOGICAL EVALUATION.
This case is continued to: 04/18/2008 10:00 AM
DATE JUDGE
Resp. App. 12
ORDER Case No.: JJ031848-01-01
Commonwealth of Virginia
ARLINGTON J&DR COURT Juvenile and Domestic
THE FOLLOWING PARTIES WERE PRESENT:
() Juvenile (J Attorney:
Probation Officer MICHELLE WOOD
kK) Guardian ad Litem DEBORAH OLIN
(] Father 1) Mother () Guardian:
Respondent/Defendant & Attorney:
MICHAEL MILLER AND LATUSEK
OO Felony (J) Misdemeanor LJ CHINS UC) Custody
C) Visitation (J Support (J Foster Care LC) Other
Type of Hearing:
LJ Determination/Appointment of Counsel
LJ Detention Hearing (LJ) Transfer Hearing
(J Adjudicatory Hearing UL) Disposition Hearing
(J) Continuance (J Review UL Preliminary Hearing
(1 Show Cause CU Trial CC) Motion __—s—ssss
Resp. App. 13
FINDINGS OF THE COURT:
IT IS ORDERED THAT:
MOTION TO WITHDRAW DR. LANE IS
HEREBY GRANTED.
DATE JUDGE
Resp. App. 14
[Amended] Case No::
ORDER FOR CUSTODY/ JJ031848-01-07
VISITATION GRANTED 02/21/2008
Commonwealth of Virginia
VA. CODE §§ 16.1-278.15, 20-
124.2
ARLINGTON J&DR COURT
L) Guardianadlitem D.OLIN ssi
_) Attorney
(] Attorney
The above-named child has been brought before this
Court upon the filing of a written petition or motion
concerning custody or visitation or for which transfer
of custody is a dispositional alternative. Legal notice
has been given to all proper and necessary parties. All
Resp. App. 15
provisions of the Juvenile, and Domestic Relations
District Court Law have been duly complied with in
assuming jurisdiction over the child, and all deter-
minations have been made in accordance with the
standards set forth in Virginia Code § 16.1-278.4,
§ 16.1-278.5, § 16.1-278.6 or § 16.1-278.8 or § 16.1-
278.15 and §§ 20-124.1 through 20-124.6.
HAVING CONSIDERED ALL RELEVANT AND
MATERIAL EVIDENCE PRESENTED AND THE
BEST INTEREST OF THE CHILD, THE COURT
FINDS THAT THE CHILD IS WITHIN THE JU-
RISDICTION OF THIS COURT AND FURTHER
FINDS AND ORDERS THAT:
1. (CJ) The parties are in agreement on the arrange-
ment for the child’s custody and visitation:
(J) as set forth in the attached document,
which is incorporated.
[J as set forth below.
Custody/Visitation
TEMPORARY PHYSICAL CUSTODY IS GRANT-
ED TO THE FATHER, MICHAEL HERBERT
PFEIFER. MOTHER ALLOWED VISITATION
WITH THE CHILD EVERY WEDNESDAY AND
THREE WEEKENDS OUT OF THE MONTH
AND WITH GIVING FATHER TWENTY-FOUR
HOUR ADVANCE NOTICE, MOTHER CAN
HAVE ANOTHER DAY DURING THE WEEK.
Resp. App. 16
The basis for the decision determining custody or
visitation has been communicated to the parties
orally or in writing.
3.
LJ A supplemental sheet with additional find-
ings and/or orders is attached and incorporated.
Relocation. Each party intending a change of
address shall give 30 days advance written notice
of such change of address to the court and other
party, pursuant to Virginia Code § 20-124.5.
Unless otherwise provided in this order, this
notice shall contain the child’s full name, the case
number of this case, the party’s new telephone
number and new street address and, if different,
the party’s new mailing address. Unless other-
wise provided in this order, the notice shall be
mailed by first-class or delivered to this court and
to the other party.
Access to Records. In accordance with Virginia
Code § 20-124.6, neither parent, regardless of
whether such parent has custody, shall be denied
access to the academic or health records of that
parent’s minor child, unless otherwise provided
in this order or, in the case of health records, if
the minor’s treating physician or clinical psy-
chologist has made a part of the child’s health
record a written statement that furnishing to or
review by the parent of such health records
would be reasonably likely to cause substantial
harm to the minor or another person.
6.
Resp. App. 17
This Order is L) FINAL TEMPORARY and a
final hearing on this matter will be held on
_........04/18/2008 ees: 10:00 AM...
DATE TIME
eee 02/21/2008. /s/ Esther Wiggins Lyles
DATE JUDGE
Resp. App. 18
ORDER Case No.: JJ031848-01-07
Commonwealth of Virginia
ARLINGTON J&DR COURT Juvenile and Domestic
THE FOLLOWING PARTIES WERE PRESENT:
(] Juvenile UL) Attorney:
LJ PROWAEIOR COTTICOR onc coccccccocccccececoccncceaccssccsencescessoss
(_) Guardian ad Litem
Petitioner/Complainant & Attorney:
SEAN O’CONNELL
Respondent/Defendant & Attorney:
LJ) Commonwealth’s Attorney: LJ
Type of Case:
[J Felony LJ Misdemeanor L) CHINS UU Custody
{J Visitation LJ Support CL) Foster Care LJ Other
Type of Hearing:
_] Determination/Appointment of Counsel
LJ Detention Hearing ( Transfer Hearing
LJ Adjudicatory Hearing UC) Disposition Hearing
(J Continuance (J) Review (J Preliminary Hearing
LJ Show Cause UL Trial
PLEA:
Resp. App. 19
FINDINGS OF THE COURT:
IT IS ORDERED THAT:
PETITIONER'S MOTION FOR RULE FOR
FAILURE TO COMPLY WITH COURT ORDER
THAT MOTHER PROVIDE VERIFICATION
THAT A) SHE HAD MOVED BACK INTO THE
AREA WITH AN ADDRESS B) WHERE SHE IS
LIVING AND C) THAT SHE STARTED THE
PSYCHOLOGICAL EVALUATION
COURT ORDERS PHYSICAL CUSTODY TO
FATHER TONIGHT WITH MOTHER HAVING
VISITATION EVERY WEDNESDAY AND
THREE WEEKENDS OUT THE MONTH FROM
FRIDAY AT 4:00 P.M. TO SUNDAY AT 4:00 P.M.
MOTHER ALLOWED ADDITIONAL WEEKDAY
VISITATION WITH 24 HOUR ADVANCE
NOTICE TO THE FATHER.
CUSTODY EVALUATION BY A QUALIFIED
EXPERT ORDERED AT THE MOTHER’S EX-
PENSE. PARTIES AND PROBATION OFFICER
IS TO SUPPLY COURT WITH THREE PSY-
CHOLOGISTS BY 2/27/2008 AND COURT WILL
CHOOSE.
CONTINUED FOR FOUR HOUR HEARING ON
THE RULES.
This case is continued to: 04/08/2008 12:00 PM
— 12/21/2008 /s/ Esther Wiggins Lyles
DATE JUDGE
Resp. App. 20
ORDER Case No.: JA020404-04-00
Commonwealth of Virginia
ARLINGTON J&DR COURT. Juvenile and Domestic
Relations District Court COMMONWEALTH OF VA
V./In re: ARIEL R. KING
THE FOLLOWING PARTIES WERE PRESENT:
(J Juvenile () Attorney: Dey
Kk) Probation Officer MICHELLE WOOD
Guardian ad Litem
[] Father (J Mother () Guardian: - ee
x] Petitioner/Complainant & Attorney: 5S. OCONNELL
Respondent/Defendant & Attorney:
M. CALLAHAN |
_j Commonwealth’s Attorney: LJ
Type of Case: FAILURE TO COMPLY
WITH VISITATION/CUSTODY |
[) Felony LJ Misdemeanor (J) CHINS Custody
Visitation (J Support LJ Foster Care LJ Other
Type of Hearing:
LJ Determination/Appointment of Counsel
(J Detention Hearing CU) Transfer Hearing
LJ Adjudicatory Hearing LJ Disposition Hearing
() Continuance LC) Review LJ Preliminary Hearing
\) Show Cause (J) Trial CL) Motion
=
PLEA
Resp. App. 21
FINDINGS OF THE COURT:
FOUND IN CONTEMPT (FAILURE TO
PROVIDE VERIFICATION OF A) RETURN-
ING TO THIS AREA B) HOME ADDRESS
AND C) PSYCHOLOGICAL EVALUATION)
IT IS ORDERED THAT:
CONTINUED FOR DISPOSITION. COURT
WOULD LIKE TO VIEW THE PSYCHO-
LOGICAL EVALUATION BEFORE DISPOSI-
TION.
This case is continued to: 06/06/2008 10:00 AM
04/08/2008 /s/ Esther Wiggins Lyles
DATE JUDGE
Resp. App. 22
VIRGINIA:
IN THE JUVENILE & DOMESTIC RELATIONS
COURT FOR ARLINGTON COURT
MICHAEL H. PFEIFFER
Petitioner,
V. CASE NO. J-31848
ARIEL R. KING
Respondent.
IN RE: ARIANA LEILANI M. A. KING-PFEIFFER
DOB: 05/07/2003
EMERGENCY MOTION FOR STAY
AND CONTINUANCE OF JUNE 6, 2008
HEARING PENDING SUPREME COURT
REVIEW OF JURISDICTION
(Filed June 3, 2008)
Respondent Ariel King, PhD, filing pro se, hereby
respectfully respectfully requests this Court stay the
above captioned proceedings and related proceedings,
and continue the upcoming hearing scheduled for
June 6, 2008, in deference to the Supreme Court of
the Commonwealth of Virginia pending review of
subject matter jurisdiction. Given the nature of the
legal review, Respondent believes that the court can
grant this motion, sua sponte, without a hearing on
an expedited basis. A suggested order is attached.
Wherefore, pursuant to Article VI of the Virginia
Constitution, and Virginia Supreme Court Rules, 5:7,
Resp. App. 23
et. seq., Respondent has filed and has now pending a
Petition for Writ of Mandamus and Petition for Writ
Prohibition in Case No. 080963 seeking that the high
court direct:
1) the JDR court vacate its the initial custody
(of September 5, 2007) and subsequent orders (in-
cluding its orders of February 8, and 21, 2008) for
lack of initial subject matter jurisdiction, and, lack of
continuing subject matter jurisdiction, and that
2) the JDR court cease issuing any further or-
ders, including any modifications of any child custody
orders.’
Lack of Subject Matter Jurisdiction to En-
ter the Initial and Subsequent Orders In This
Child Custody Case: As a case of first impression,
the pending Petition seeks necessary conformity in
the “home state” jurisdictional analysis of the
UCCJEA in the Commonwealth of Virginia (VA Code
§ 20-146.1, et. seq.) with that of the Supreme Courts
of other states, including Ohio, and Montana. Rosen
v Celebrezze, 2008 Ohio 853 (2008), Stephens v.
Fourth Judicial District Court, 331 Mont. 40;
128 P.3d 1026 (2006). The high courts have rejected
any UCCJEA jurisdictional determination based on
' As the Petition also explains, the various supreme courts
have universally found that a petition for mandamus and pro-
hibition is appropriate for addressing subject matter jurisdiction
error in these types of UCCJEA situations — rather than the
appeals process.
Resp. App. 24
intent. Instead, the prevailing view is that a “bright
line analysis” must be applied, requiring that that the
statutory language of “immediately before the com-
mencement of the child custody proceeding” could
only be referring to any time during the six months
preceding the filing of the child custody case.’ Under
that analysis, Maryland was — without any question —
the home state of the child in the instant case when
Petitioner filed his Petition on August 9, 2007 (well
within six months of the child’s having lived for well
over six months in her home state of Maryland, speci-
fically only 29 days after Respondent and the child
sought housing on an emergency basis in Virginia
after being abandoned by the Petitioner in Maryland
— including being cut off from all financial resources).
The Petition explains that applying that uniform
interstate interpretation of this multistate UCCJEA
statute, dictates that Virginia did not have initial
subject matter jurisdiction in this case, making null
and void all orders entered in this proceeding.
Loss of Continuing Jurisdiction: The Petition
also sets forth that even if the JDR court had initial
subject matter jurisdiction when it entered the Initial
Order on September 5, 2007, the JDR court lost any
ongoing exclusive jurisdiction once no party remained
* The uniform interstate interpretation of these Supreme
Courts rejected the positions previously urged on this Court by
Petitioner’s counsel and the GAL.
Resp. App. 25
in the state — since October 2007.° Also, once the
ability was lost to enter an initial order — with no one
in the state — the ability was lost to enter any modifi-
catioris. Thus, from the date that no party was living
in the Commonwealth, the Court was barred from
entering modifications to any child custody deter-
minations (which includes initial, temporary or final
child custody orders). See, VA Code § 20-146.1,
et, seq., in particular VA Code § 20-146.1 and 20-
146.13.
The Grant of A Temporary Stay and Con-
tinuance Is Appropriate Until the Higher Courts
Resolve the Subject Matter Jurisdictional Issues:
Deference to the Supreme Court is appropriate and
required. A stay of these proceedings and continuance
of any upcoming hearings will allow the Supreme
Court (or any lower court it designates) to rule on this
matter first under its original jurisdiction for prohi-
bition and mandamus, and avoid the unnecessary
“churn” of rulings, and waste of judicial resources in
the Commonwealth of Virginia that other states have
now successfully avoided. With it being undisputed
that no party is or has lived in the Commonwealth
since October 2007, the Supreme Court will, at a
minimum, find — by strict statutory application and
supporting caselaw — that under VA Code § 20-
146.13 dictates that the JDR court lost jurisdiction to
* The exact date is not of concern, as no modifications of any
child custody determinations were entered by the JDR court
until February 8, 2008,
Resp. App. 26
enter any further modifications to any child custody
determinations (whether “initial,” “temporary,” or
“permanent”). No party will be harmed by the grant
of such a stay and continuance in deference to the
Supreme Court. An expedited ruling was requested of
the Supreme Court, thus it is expected that any delay
in these proceedings will be relatively short and not
be of any harm to any party.
* * K
WHEREFORE, Respondent respectfully requests
that the JDR court provide the required deference to
the Supreme Court and stay the above captioned
proceeding, and — at a minimum — continue any up-
coming hearings until the Supreme Court (or any
court its designates) rules on the merits of the
pending Petition.*
/s/ Ariel R. King
Ariel King (Pro Se)
11725 Greenlane Drive
Potomac, MD 20854
202 730 5111
Email: drarielking@yahoo.com
4
As noted above, Respondent believes that the court can
grant this motion, sua sponte, without a hearing on an expedited
basis.
Resp. App. 27
ORDER FOR CUSTODY/ = Case No.
VISITATION GRANTED JJO31848-01-00 ___
TO INDIVIDUAL(S)
Commonwealth of Virginia “3 xR A A OIA
VA. CODE §§ 16.1-278.15, 20- DATE OF HEARING
124.2
ARLINGTON J&DR COURT
DATE OF BIRTH
Present: &] Father MICHAEL HERBERT PFEIFFER.
C) Mother
CL) Attorney
{) Attorney
The above-named child has been brought before this
Court upon the filing of a written petition or motion
concerning custody or v°. itation or for which transfer
of custody is a dispositional alternative. Legal notice
has been given to all proper and necessary parties. All
provisions of the Juvenile, and Domestic Relations
Resp. App. 28
District Court Law have been duly complied with in
assuming jurisdiction over the child, and all deter-
minations have been made in accordance with the
standards set forth in Virginia Code § 16.1-278.4,
§ 16.1-278.5, § 16.1-278.6 or § 16.1-278.8 or § 16.1-
278.15 and §§ 20-124.1 through 20-124.6.
HAVING CONSIDERED ALL RELEVANT AND
MATERIAL EVIDENCE PRESENTED AND THE
BEST INTEREST OF THE CHILD, THE COURT
FINDS THAT THE CHILD IS WITHIN THE JU-
RISDICTION OF THIS COURT AND FURTHER
FINDS AND ORDERS THAT:
1. © The parties are in agreement on the arrange-
ment for the child’s custody and visitation:
() as set forth in the attached document,
which is incorporated.
CL) asset forth below.
2. Custody/Visitation
SOLE LEGAL AND PHYSICAL CUSTODY OF
[Name Of Minor Child Omitted] IS GRANTED
TO HER FATHER, MICHAEL H. PFEIFFER.
THE MOTHER, ARIEL R. KING, SHALL NOT
HAVE ANY CONTACT WITH THE CHILD UN-
TIL SHE AVAILS HERSELF TO THE COURT
AND COMPLETES A PSYCHOLOGICAL EVAL-
UATION.
Resp. App. 29
The basis for the decision determining custody or
visitation has been communicated to the parties
orally or in writing.
3.
on
(J A supplemental sheet with additional find-
ings and/or orders is attached and incorporated.
Relocation. Each party intending a change of
address shall give 30 days advance written notice
of such change of address to the court and other
party, pursuant to Virginia Code § 20-124.5.
Unless otherwise provided in this order, this
notice shall contain the child’s full name, the case
number of this case, the party’s new telephone
number and new street address and, if different,
the party’s new mailing address. Unless other-
wise provided in this order, the notice shall be
mailed by first-class or delivered to this court and
to the other party.
Access to Records. In accordance with Virginia
Code § 20-124.6, neither parent, regardless of
whether such parent has custody, shall be denied
access to the academic or health records of that
parent’s minor child, unless otherwise provided
in this order or, in the case of health records, if
the minor’s treating physician or clinical psy-
chologist has made a part of the child’s health
record a written statement that furnishing to or
review by the parent of such health records
would be reasonably likely to cause substantial
harm to the minor or another person.
Resp. App. 30
6. This Order is & FINAL LJ) TEMPORARY and a
final hearing on this matter will be held on
A ie ena: RA 2S NO RE Re
DATE TIME
Ree: 06/06/2008 /s/ Esther Wiggins Lyles
DATE JUDGE
[cc: Mother, Father, O’Connell, Olin, PO]
Resp. App. 31
ORDER Case No.: JJ031848-01-00
Commonwealth of Virginia
ARLINGTON J&DR COURT. Juvenile and Domestic
THE FOLLOWING PARTIES WERE PRESENT:
(J Juvenile CL)Attorney:.
Probation Officer MICHELLE WOOD
Guardian ad Litem DEBORAH OLIN ssi
(1) Father CL) Mother C) Guardian:
Petitioner/Complainant &) Attorney:
SEAN O’CONNELL
Type of Case: CUSTODY
() Felony () Misdemeanor L) CHINS Custody
CL) Visitation LJ Support CJ Foster Care LJ Other
Type of Hearing:
L) Determination/Appointment of Counsel
L) Detention Hearing (UW Transfer Hearing
Adjudicatory Hearing LJ Disposition Hearing
() Continuance CO Review UL Preliminary Hearing
(J Show Cause UI Trial UL Motion OJ
PLEA: _
Resp. App. 32
FINDINGS OF THE COURT:
IT IS ORDERED THAT:
MOTHER HAS ABDUCTED CHILD AND
MOTHER EXHIBITED BEHAVIOR TO MONT-
GOMERY CPS WHICH MADE THE AGENCY
CONCERN FOR THE CHILD’S SAFETY.
SOLE LEGAL AND PHYSICAL CUSTODY OF
THE CHILD IS GRANTED TO THE FATHER
MICHAEL PFEIFFER AND NO CONTACT OF
CHILD BY THE MOTHER UNTIL THE
MOTHER AVAILS HERSELF OF THIS COURT
AND UNDERGOES A COMPLETE PSYCHO-
LOGICAL EVALUATION.
06/06/2008 sy. /s/ Esther Wiggins Lyles
DATE JUDGE
Resp. App. 33
VIRGINIA:
IN THE CIRCUIT COURT
FOR ARLINGTON COUNTY
ARIEL R. KING
Plaintiff,
. Case Number 08-1193
; CASE NO. JJ-031848-01
MICHAEL H. PFEIFFER
Defendant.
NOTICE AND MOTION TO DISMISS
PLEASE TAKE NOTICE that that on or about
this 17th day of October 2008 at 10:00 a.m. or as soon
thereafter as may be heard, the Appellee/Petitioner,
MICHAEL H. PFEIFFER by and through under-
signed counsel, Sean W. O’Connell, Esquire, will
respectfully move this Court to dismiss the instant
case as moot and as in effect what is in effect an
improperly filed appeal from the June 6, 2008 final
custody Order and to dismiss the September 16, 2008
Appeal from the J&DR Court of that date as moot.
1. The underlying case in the J&DR Case No.
JJ-031848-01 was a custody case in which the final
order was entered on June 6, 2008 and was not ap-
pealed by the Respondent within 10 days of its entry
or the subject of a motion for reconsideration heard
within 45 day.
2. Additionally, on September 16, 2008 a hear-
ing was held on 4 motions late and improperly filed in
Resp. App. 34
the Arlington J&DR case brought by the Plaintiff
along with the Motion of the Defendant requesting
that the Clerk be directed to released the passport of
the minor child Ariana King Pfeiffer which had been
directed to surrendered for pendente lite purposes
until custody had been decided. The motion she filed
for the hearing she failed to attend were as follows:
i. Motion for Sanctions and to Strike Pleadings
by Petitioner, Motion for Sanctions Against
the GAL, Motion to Dismiss the GAL and
Motion to Reopen Motion to Show Cases
Regarding Christopher Lane, The GAL and
2-8-08 Order
il. Motion to Set Aside Orders
iii. Motion to Quash Defective 9-16-08 Hearing
Notices and Continuance of Hearing to a
Later Date
iv. Motion to Recuse
3. On September 16, 2008, the Court having
provided several weeks notice of the date of the
hearing held said hearing and the Appellant, then
Respondent, failed to attend or send a representative.
4. On September 16, 2008, the Court granted
the Motion to direct the release of the passport and
denied the remaining motions as the Appellant, then
Respondent, was not present for her own motions.
5. The Clerk within the hour of granting the
motion delivered the passport to the Father rendering
the instant action moot as regards the passport.
Resp. App. 35
6. The instant action is a transparent violation
of the appellate procedure of J&DK cases and should
therefore be dismissed without regard to the merits of
the case for that cause and for failure to exhaust the
available legal remedies.
7. The case was decided in a manner necessary
to protect the child from a dangerously unstable
parent.
8. The instant case was not served but rather
was discovered only when placed upon the term day
docket.
WHEREFORE Defendant request that the Court
dismiss the instant law case and the J&DR appeal
and award attorneys fees in the amount of $1,000.00
for the time necessary to bring forward this motion as
the case and the appeal were was brought in violation
of Virginia Code 8.01-271.1 and are vexatious.
MICHAEL H. PFEIFFER
By Counsel
/s/ Sean W. O’Connell 7
Sean W. O’Connell, Esquire
Virginia State Bar No. 27690
4113 Lee Highway
Arlington, Virginia 22207
Tel: (703) 558-0000
Counsel for
Defendant-Petitioner
[Certificate Of Service Omitted In Printing]
Resp. App. 36
VIRGINIA:
IN THE CIRCUIT COURT
FOR ARLINGTON COUNTY
ARTEL R. KING
Plaintiff,
Case Number 08-1193
= CASE NO, J-31848-01
MICHAEL H. PFEIFFER
Defendant.
VERIFICATION
I, MICHAEL H. PFEIFFER, after being duly de-
posed and sworn, hereby verify that all the allega-
tions stated in the attached Notice and Motion to
Dismiss and its attachments are true and accurate to
the best of my knowledge.
/s/ Michael H. Pfeiffer __
MICHAEL H. PFEIFFER,
Petitioner
STATE OF VIRGINIA
County of Arlington to-wit:
Subscribed and sworn to before me this 10th day
of October 2008.
Resp. App. 37
/s/ William B. O’Connell
Notary Public
My Commission Expires: |WILLIAM B. O’CONNELL
August 31, 2009 NOTARY PUBLIC
Commonwealth of Virginia
Reg. #107300
My Commission Expires
8/31/2009
Resp. App. 38
SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA
DOMESTIC RELATIONS BRANCH
FAMILY COURT
ARIEL ROSITA KING, : DR Case No.
et 2009 DRB 1167
epee, : Judge Zinora M.
vs. : Mitchell-Rankin
MICHAEL HERBERT : Calendar 3
PFEIFFER,
Defendant.
DECISION AND ORDER DENYING
PLAINTIFF’S COMPLAINT FOR
INJUNCTIVE RELIEF ON THE GROUNDS
OF MEDICAL NEGLECT
This matter came before the Court on a
Complaint for Negligent Treatment and Injunctive
Relief. The Complaint for Negligent Treatment and
Injunctive Relief was filed on April 21, 2009. The
Plaintiff is Ariel Rosita King, Ph.D.’ The Defendant,
Dr. Michael Herbert Pfeiffer, filed a Counterclaim on
May 13, 2009. The action involves the subject minor
child, [Name Of Minor Child Omitted], who was born
on [Date Of Birth Omitted]. The parties are the sub-
ject minor child’s biological parents. The Defendant
and the subject minor child are bona fide residents of
the District of Columbia, and the District of Columbia
' Dr. King is not a medical doctor.
Resp. App. 39
is the Home State of the subject minor child. [See,
D.C. Code, Title 16, 4602.01(a)(1)] The hearings in
this matter occurred on April 23, 2009, and August 5,
2009. All parties and respective counsel* were present
at each proceeding and submitted evidence.
PROCEDURAL HISTORY
On June 6, 2008, Judge Esther Wiggins Lyles of
the Juvenile and Domestic Relations Court of
Arlington issued a Final Order awarding Dr. Pfeiffer
sole legal and physical custody of the subject minor
child. Pursuant to that Order, the Plaintiff was
prohibited from having any contact with the subject
minor child until she availed herself to the Court and
completed a Psychological Evaluation. (Plaintiff’s
Exhibit No. 1) That Order remains in full force and
effect. (Defendant’s Exhibit No. 4) In that regard,
there was no evidence presented that Dr. King
complied with the requirements of the Order by
* At the April hearing and until August 5, 2009, Wendell
Robinson and Leonard Long were counsel! of record. ‘The Court
granted their Motion to Withdraw on August 5, 2009, and Mr.
Roy Morris became counsel of record on that date. At the August
5th hearing Mr. Morris also sought the admission of Ms. Burns
to serve as counsel; however, at the time of the request there
was no such application pending, and counsel had failed to
submit her request to the Court of Appeals Committee on
Unauthorized Practice. The Court, therefore, denied the
application.
Resp. App. 40
submitting to that Court for purposes of a Psycho-
logical Evaluation.* Since that Order Dr. King has
been zealous in her efforts to secure custody of the
subject minor child, and to vindicate her allegations
and perceptions of medical neglect/maltreatment of
the subject minor child by Dr. Pfeiffer.
Subsequently, Dr. King filed a Petition for
Custody in the Circuit Court for Montgomery County,
and a hearing was scheduled before the Honorable
Thomas L. Craven. In that Petition Dr. King raised
allegations of abuse and medical neglect of the
subject minor child by Dr. Pfeiffer. Her Petition was
dismissed on June 5, 2008. (Defendant’s Exhibit No.
3) By Order entered on the docket on August 18,
2008, by the Honorable Jerry Byrd of the District of
Columbia Superior Court, the Plaintiff’s Petition for
Writs Ne Exeat or in the Alternative for Injunctive
Relief was Denied. Concurrent with the subject Wnit,
the Plaintiff filed a Complaint for Custody, which she
later voluntarily dismissed. (Defendant’s Exhibit No.
* Dr. King testified that she had three (3) psychological
evaluations; however, she did not present evidence that the
evaluations were submitted and accepted by the Domestic
Relations Court of Arlington, Virginia.
‘In this exhibit, which consists of a transcript from the
subject hearing, social workers from the Child Protection Unit in
Montgomery County and the Advocacy Center testified about
Dr. King’s allegations, her “bizarre” and “disturbing” behavior,
and their concern for the safety of the subject minor child
occasioned by her behavior. (See, Defendant’s Exhibit No. 3 at
Pages 10-15)
Resp. App. 41
8) Then in October 2008, the Plaintiff filed in this
Court an Emergency Motion for Custody, which was
denied by Judge Fern Flanagan Saddler by Order
entered on the docket on October 10, 2008.
(Defendant’s Exhibit. No. 7) On or about June 3, 2008,
Dr. King, without authorization, removed the subject
minor child from the German School and took her to
Brooklyn, New York to the Montefiore Medical
Center. As a result of that conduct, Dr. King was
convicted of child abduction on April 6, 2009, in the
Montgomery County Circuit Court. The Plaintiff has
also initiated three (3) investigations via the District
of Columbia Child Protective Services in October and
August 2008, and April 22, 2009. In each instance Dr.
King has raised the issue of medical neglect, and in
each instance the investigations have been closed as
unfounded.” On April 21, 2009, the Plaintiff filed the
subject Complaint for Negligent Treatment and
Injunctive Relief on the grounds of Medical Neglect.
FACTS PERTINENT TO THE
SUBJECT COMPLAINT AND DECISION
The question presented is whether the Plaintiff
has demonstrated by a preponderance of the evidence
medical neglect by Dr. Pfeiffer. In that regard, the
Court considered whether there was any evidence
that demonstrated that Dr. Pfeiffer had ignored or
° Dr. King also raised the issue of sexual abuse/assault,
which like her contentions of medica] neglect was unfounded.
Resp. App. 42
otherwise failed to exercise due attention and regard
for symptoms of Neutropenia and/or attendant illnesses
thereto to the detriment of the subject minor child;
whether he had failed to exercise due diligence in the
selection of medical professionals in the treatment of
Neutropenia to the detriment of the subject minor
child; whether Dr. Pfeiffer had failed to seek
appropriate medical treatment of Neutropenia or
otherwise ignored appropriate or necessary treat-
ment(s) to the detriment of the subject minor child;
and whether Dr. Pfeiffer had failed to implement
treatment/protocols that were provided to him by
medical professionals to insure the subject minor
child’s medical well-being, to the detriment of the
subject minor child? See generally, In re M.D., 758
A.2d 27, 28-39 (D.C. 2000) This Court has reviewed
the evidence and the exhibits that were submitted in
this case, and can discern no evidence of medical
neglect by Dr. Pfeiffer in any of the particulars
referenced.
[Name Of Minor Child Omitted] is a six (6) year
old little girl, who lives with her father in the District
of Columbia, and who attends the German School,
where she is in the first grade. [Name Of Minor Child
Omitted] engages in age appropriate activity, she
gains weight appropriately, eats well, is not sick or
sickly, has not missed school, except for medical
appointments, and other matters attendant to her
mother’s perceptions. Dr. Pfeiffer is employed as a
physician at Georgetown University Hospital, and is
Resp. App. 43
the subject minor child’s sole legal and physical
custodian.
Since 2008, the subject minor child has been
monitored for Benign Neutropenia. Neutropenia is
defined as abnormally low levels of neutrophils in the
blood. Neutrophils are white blood cells produced in
the bone marrow that ingest bacteria. Neutropenia
can be a serious disorder, because it makes the body
vulnerable to bacterial and fungal infections. The
aggregate of the evidence demonstrates that [Name
Of Minor Child Omitted] Neutropenia is benign and
asymptomatic. Her neutrophil counts have, however,
fluctuated over the pertinent period from May 2008
through the date of the last medica] report submitted
into evidence in this case, which has necessitated
regular monitoring and the exercise of precautions.
The evidence presented does not provide a specific
underlying cause of this illness, except for the opinion
of Dr. Rubio, consultant and infectious disease
specialist, that the condition was likely secondary to a
viral myelopsupression, and the opinion of Dr.
Rudolph of Idiopathic Neutropenia, that the condition
was likely post viral. (Plaintiffs Exhibit No. 4) There
was no evidence presented that (Name Of Minor
Chiid Omitted] had or has any relevant
symptoms that were ignored or unresponded to
by Dr. Pfeiffer, such as _ recurrent fevers,
shortness of breath, bacterial infections, perio-
dontal disease or dental problems, visual
difficulties or blurred vision, headaches, suffered
traumas, chest pain, joint pain, abdominal pain,
Resp. App. 44
ear pain, bleeding, bruising, GI symptoms,
enlarged nodes, loss of appetite, weight changes,
or fatigue, diarrhea, constipation, urinary pro-
blems, allergies, sinus problems, chills, sweats,
rashes, lesions, sensory problems, gait problems
or other symptoms of possible infection or
acute/active Neutropenia.® There is no evidence
that the subject minor child has any form of cancer,
specifically leukemia, which can be an underlying
cause for this condition. (Plaintiff s Exhibit Nos. 4-7;
Defendant’s Exhibits 11-4)
[Name Of Minor Child Omitted] has a
Pediatrician, a Hematologist, and a Pediatric Hema-
tology Oncologist, and she has been consistently
examined and evaluated by reputable and capable
doctors, each of whom have found the subject minor
child to have Chronic Benign Neutropenia, to be
asymptomatic, to be stable and to be functioning
appropriately. As stated, there has been fluctuation in
her absolute neutrophil count (“ANC”), and this
fluctuation serves as the attendant basis for the
diagnosis of Chronic Benign Neutropenia; a diagnosis
that appears from the evidence to be the consensus
diagnosis of the medical professionals that have seen
her. Neutropenia is and can be a very serious illness,
which this Court does not minimize. However, the
subject minor child is being seen by doctors, who are
* (Name of Minor Child Omitted] did have a mouth ulcer in
October 2008. She was treated by Dr. Abu-Ghosh, and the issue
was promptly resolved.
Resp. App. 45
aware of her condition, are trained and employed in
the relevant field (pediatric hematology and
oncology), and are medically servicing her in a
manner which, absent any evidence to the contrary, is
consistent with the applicable standard of care. There
is no evidence of record that any of the subject minor
child’s treating and consulting physicians are not
qualified in their respective fields, or in some way, in
either their consultations, examinations and/or
evaluations have deviated from the applicable
standard of care. The evidence presented supports
their conclusion that the subject minor child’s
Neutropenia is chronic, benign and asymptomatic.
[Name Of Minor Child Omitted] can breathe, hear,
speak, talk, walk and learn without pain, without
discomfort and without inhibition. She eats well, she
has not lost her appetite, she is not losing weight, she
is eliminating appropriately, there being no evidence
of diarrhea or constipation, and she does not miss
school. She is not bleeding, has no GI problems,
bruising or enlarged nodes, and her ability to act and
to perform like a six (6) year old little girl has not
been inhibited. Dr. Pfeiffer has insured that the
subject minor child has medical insurance, and is
medically evaluated, examined and monitored within
the time frames and frequency that the medical
professionals have required. Dr. Pfeiffer has been
advised of the symptoms to watch out for and the
steps to take if such symptoms exist. He has been
given basic precautions to assist the subject minor
child in avoiding infections and other contagions,
such as good oral hygiene, hand washing and
Resp. App. 46
avoidance of large crowds. [Name Of Minor Child
Omitted] teachers have been told as much. There is
no evidence that Dr. Pfieffer has not followed this
medical advice. On the contrary, the evidence
demonstrates that Dr. Pfeiffer has sought medical
guidance from relevant professionals, that everything
that he has been told to do medically has been done,
and that he has otherwise acted, throughout the
relevant time periods presented to this Court, as a
father who is aware of his daughter’s medical status,
and who has and is prepared to take the steps
necessary to insure her medical well-being.
The basis for the Plaintiff’s perceptions and
contentions of medical neglect are not supported by
the evidence presented. Although the basis is not
wholly clear, the Plaintiff believes that there are
some undisclosed procedures and tests which should
be performed. She believes that the subject minor
child should be hospitalized and should be receiving
alternate, although undisclosed, treatments. Plaintiff's
unsuccessful attempt to qualify Dr. Sklaroff as an
expert witness in that regard is unavailing. Although
Dr. Sklaroff is qualified in the field of hematology and
oncology, his work has been primarily with adults. Dr.
Sklaroff was offered as an expert in Pediatric
Hematology and Oncology. Dr. Sklaroff testified that
there was no diagnostic difference between an adult
and a child with regard to the onset and treatment of
Neutropenia. Yet, he could not provide the Court with
any experience, training or other relevant basis to
demonstrate the requisite knowledge base and
Resp. App. 47
expertise to support his opinion that there was no
difference. Dr. Sklaroff provided no basis from which
this Court could conclude that he had any expertise
in Pediatric Hematology/Oncology based on either
experience or training. Certainly, his testimony that
he worked with children as a doctor at a camp would
not qualify him to render an opinion regarding the
diagnosis and treatment of Pediatric Neutropenia.
The testimony from Dr. Scott Myer, the subject minor
child’s treating physician from the Pediatric
Hematology/Oncology Department of the Lombardi
Comprehensive Cancer Center, did not advance Dr.
Sklaroff’s position or standing in that regard. See, Jn
re Melton, 597 A.2d 892, 901 (D.C. 1991). See also,
Coulter v. Gerald Family Care, P-C., 964 A.2d 170,
189-190 (D.C. 2009) (holding that the trial judge has
“wide latitude” in the admission or exclusion of expert
testimony and this decision should be sustained
unless it is manifestly erroneous.) In perhaps, further
support of the Plaintiff’s assertions, as inferred from
Plaintiff’s Exhibit No. 3, Dr. Louis Cooper wrote after
a June 3rd eval: ation of the subject minor child:
“I may consider doing a bone marrow on this
child, or have it done in a tertiary center. I
am going to revisit with the child in three
days. She looks clinically well. I asked that
she stay away from school and stay away
from anyone ill”.
The Plaintiff removed the subject minor child from
the German School, without the authorization or
knowledge of Dr. Pfeiffer, to see Dr. Cooper. The
Resp. App. 48
Plaintiff did not return the minor child for a follow-
up, as apparently Dr. Cooper expected, but instead
removed the subject minor child from the jurisdiction,
without authorization, by taking her to New York,
where the subject minor child was admitted on June
11, 2008, to the Montefiore Medical Center. The
Discharge Summary, Plaintiffs Exhibit No. 4,
provides that the subject minor child was admitted
not because of illness, although her Neutropenia was
acknowledged, but for social reasons attributable to
the Plaintiff’s erratic behavior. The diagnosis
provided in the Discharge Summary is Idiopathic’
Neutropenia, post viral, a diagnosis that is not
dissimilar to the one provided by her treatment team,
as authorized by Dr. Pfeiffer.” The fact that the
underlying cause of the subject minor child’s
Neutropenia is not definitively known cannot be
viewed to support the Plaintiff’s contention of
medical neglect, since the evidence demonstrates that
the Neutropenia is benign and asymptomatic, and
there is no evidentiary basis from which this Court
can conclude that if the etiology were known, that the
subject minor child’s medical regimen would be any
different from that being provided at this time.
Moreover, there is no indication from the
available medical reports that the subject minor child
’ Idiopathic: A disease of no known origin. See, Webster's
New World Dictionary.
" On June 16, Dr. King was arrested and the subject minor
child was returned to her father’s care and custody
Resp. App. 49
has cancer, or specifically has leukemia. Her treating
physicians have concluded that she does not, and
there is no evidence that this conclusion is
unsupported or that in reaching this conclusion that
the subject minor child’s treatment team has deviated
from an applicable standard of care. (Defendant’s
Exhibit No. 12) Similarly, there is no evidence
presented that a bone marrow evaluation, during the
pertinent time frame as presented to this Court,
is/was medically necessary. Nor is there any evidence
before the Court that if such a procedure becomes
medically necessary that her current medical team,
that consists of a pediatrician, hematologist and a
pediatric hematologist/oncologist, would not recognize
the need for the same, recommend that it be done,
and that Dr. Pfeiffer would not authorize a medically
necessary procedure. There is simply no evidence
from which this Court could reasonably conclude that
[Name Of Minor Child Omitted] should have other
doctors, should be needlessly tested and prodded, or
should have had a bone marrow test, or have had any
other medical service or diagnostic that she has not or
is not currently receiving.”
” Despite, the Defendant’s protestatio: this Court tried to
give the Plaintiff every opportunity to make her case, even
allowing a subsequent date for a further hearing to give her an
opportunity to present further evidence and an expert witness,
Dr. Sklaroff, even though after the April hearing this Court
stated to the Plaintiff that she had, at that time, failed to
present any evidence of medical neglect
Resp. App. 50
CONCLUSION
In conclusion, the Plaintiff has failed to prove
medical neglect by Dr. Pfeiffer, or any basis for
injunctive relief.” Dr. Pfeiffer has not denied the
subject minor child required medical treatment; he
has not relied on charlatans in that regard, but
reputable medical professionals who have specialties
in fields relevant to the subject minor child’s medical
needs and well-being. Dr. Pfeiffer has not ignored
medical treatment recommendations, but has complied
with every evaluation and examination that has been
required. He has implemented the precautions that
have been recommended by medical professionals.
The subject minor child has not been harmed by Dr.
Pfeiffer’s actions, is asymptomatic, and has not,
within the relevant time frame, experienced any of
the symptoms described in the medical reports that
would indicate more active rather than benign
Neutropenia. How many diagnostics or medical
services are required to effectuate a cure, medical
well-being or quality of life? Should this diagnostic or
some other be performed or should this treatment or
some other treatment be provided? Who should
provide such services? When, and under what
circumstances should a particular medical service be
provided, and at what costs to the patient relative to
With regard to the request for injunctive relief, the record
is devoid of any evidence of likelihood of success on the merits, of
irreparable injury, or that the public interest would be served by
the granting of injunctive relief
Resp. App. 51
some appreciable outcome? These are topical questions
about which medical professionals, the insurance
industry, interest groups, and the citizens of this
country have varying opinions that are now being
expressed as we, as a nation, debate health care
reform. In this case, however, the evidence does not
pose these questions, but demonstrates that within
the relevant time frame that the subject minor child
has been provided with the medical personnel and
with the medical services that she requires, and that
the quality of her life has not been adversely
impacted by the decisions made by Dr. Pfeiffer, in
that regard. The evidence does not support a finding
of medical neglect."
ORDER
Accordingly, for the foregoing reasons, it is this
2nd day of December 2009:
11
There are some exhibits that the Plaintiff submitted to
the Clerk’s Office on August 11, after the hearing on August 4,
which are not part of the evidentiary record, and which were not
considered by this Court since they were not received as
evidence during the subject evidentiary hearings. Indeed, the
Court Record is filled with attachments and exhibits, that were
submitted by the Plaintiff that have not been considered by this
court, since they are not part of the evidentiary record as
produced and received by the Court during the evidentiary
hearings in April and August 2009.
Resp. App. 52
ORDERED, that the Plaintiff’s Complaint for
Negligent Treatment and for Injunctive Relief, be and
hereby are DENIED.
SO ORDERED.
/s/ Zinora M. Mitchell-Rankin
Zinora M. Mitchell-Rankin
Associate Judge
(Signed in Chambers)
Copies to:
Roy L. Morris, Esquire
P.O. Box 100212
Arlington, Virginia 22210
Sean O’Connell, Esquire
4113 Lee Highway
Arlington, Virginia 22207
Resp. App. 53
Va. Sup. Ct. R. 5A:3 (2009)
Rule 5A:3. Extension of Time.
(a) The times prescribed for filing the notice of
appeal (Rules 5A:6 and 5A:11), a petition for appeal
(Rule 5A:12), and a petition for rehearing (Rule
5A:33) and a request for rehearing en banc (Rule
5A:34) are mandatory. Except for the petition for
appeal which is addressed in Rule 5A:12(a) and
Virginia Code § 17.1-408, a single extension not to
exceed thirty days may be granted if at least three
judges of the Court of Appeals concur in a finding
that an extension for papers to be filed is warranted
by the intervention of some extraordinary occurrence
or catastrophic circumstance which was’ unpre-
dictable and unavoidable, The time period for filing
the notice of appeal is not extended by the filing of a
motion for a new trial, a petition for rehearing, or a
like pleading unless the final judgment is modified,
vacated, or suspended by the trial court pursuant to
Rule 1:1, in which case the time for filing shall be
computed from the-date of the final judgment entered
following such modification, vacation, or suspension.
(b) Except as provided in subsection (a) of this
Rule, the times prescribed in these Rules for filing
papers, except transcripts (Rule 5A:8(a)), may be
extended by a judge of the court in which the papers
are to be filed on motion for good cause shown and to
attain the ends of justice.
(c) Any document required to be filed with the
clerk of the Court of Appeals, or filed in the office of
Resp. App. 54
the clerk of the Court of Appeals, shall be deemed to
be timely filed if it is mailed postage prepaid to the
clerk of the Court of Appeals by registered or certified
mail and if the official receipt therefor be exhibited
upon demand of the clerk or any party and it shows
mailing within the prescribed time limits. This Rule
does not apply to documents to be filed in the office of
the clerk of the trial court or clerk of the Virginia
Workers’ Compensation Commission.
(d) Inmate Filing. A paper filed by an inmate
confined in an institution is timely filed if deposited
in the institution’s internal mail system with first-
class postage prepaid on or before the last day for
filing. Timely Sling of a paper by an inmate confined
in an institution may be established by (1) an official
stamp of the institution showing that the paper was
deposited in the internal mail system on or before the
last day for filing, (2) an official postmark dated on or
before the last day for filing, or (3) a notarized
statement signed by an official of the institution
showing that the paper was deposited in the internal
mail system on or before the last day for filing.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.