# Opposition Brief — King v. Pfeiffer (No. 09-612) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1269%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2009 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1269%3A2. Public record. Not legal advice.