based on the collateral estoppel doctrine. The court granted the motion and entered
judgment in defendants' favor.
Kemper appeals. We affirm. Causation is an essential element of a legal
malpractice claim, and Kemper is barred by the collateral estoppel doctrine from
relitigating the issue of whether her juvenile dependency attorneys caused the termination
of her parental rights. We decline Kemper's request that we create a new exception to the
collateral estoppel rule based on an analogy to the writ of habeas corpus procedure
applicable in juvenile dependency cases.
FACTUAL AND PROCEDURAL SUMMARY
I. Summary of Dependency Proceedings
In May 2008, 16-year-old Kemper gave birth to a daughter, NF. When the baby
was less than two weeks old, San Diego police officers removed the child from Kemper's
care. Four days later, the San Diego County Health and Human Services Agency
1 In re N.F. (June 29, 2010, D055922) [nonpub. opn.] (N.F.).
2 The three attorneys were employed by the Office of the Alternate Public Defender, a division of the County.
2
(Agency) filed a juvenile dependency petition under Welfare and Institutions Code
section 300, subdivision (g), alleging the infant was at substantial risk of harm because
she had been abandoned by the mother; the mother's whereabouts were unknown; and
reasonable efforts to find the parents had been unsuccessful.3 The next day, the trial
court made a prima facie finding on the petition and detained the child in out-of-home
care.
About three weeks later, on June 18, the court held a jurisdiction and disposition
hearing. At the outset, Agency social worker Mark Hood informed the court that the
mother (Kemper) had called his office to say she was on her way to court from Los
Angeles. The court then trailed the matter until 1:30 in the afternoon. When Kemper had
not arrived by 2:10 p.m., the court resumed the hearing, sustained jurisdiction under
section 300, subdivision (g), declared NF a dependent child, and removed her from
parental custody. The court did not appoint counsel for Kemper because she had not yet
appeared in the action.
Shortly after the hearing, Kemper and the baby's alleged father arrived in the
courtroom. The court clerk gave them Hood's phone number. The court scheduled a
special hearing for the next month to appoint counsel for both parents.
3 All further statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
3
On July 15, Kemper appeared at the continued hearing and the court appointed
counsel for her (defendant De Soto).4 De Soto said she had discussed Kemper's
"constitutional, trial and statutory" rights with Kemper, and Kemper understood those
rights. When the court asked about the appointment of a guardian ad litem, De Soto said
she had spoken with Kemper and both she and Kemper believed a guardian ad litem was
not necessary. De Soto requested that the court facilitate services in the Los Angeles area
where Kemper lived, and the Agency's counsel agreed it was appropriate to do so (at least
with respect to ordered therapy). The court spoke directly to Kemper about the
importance of complying with the ordered services in a timely fashion.
About eight months later, in February 2009, the court held a contested six-month
review hearing. Kemper was present and represented by defendant Kisiel. At the
hearing, the Agency submitted two social worker reports, and requested termination of
reunification services based on evidence showing Kemper had only minimally participated
in services and visitation. Kisiel did not present any affirmative evidence or cross-examine
the social workers, but requested the court continue services for Kemper, arguing Kemper's
progress had been sufficient; she had appeared for court hearings; she had made progress in
parenting classes; she had engaged in therapy; and she had made best efforts to comply
with the plan despite living in Los Angeles County.
NF's counsel requested that the court follow the Agency's recommendation,
emphasizing Kemper's repeated failure to participate in reunification services.
4 At the time De Soto's last name was Schmidt. 4
At the end of the hearing, the juvenile court rejected Kisiel's arguments,
terminated reunification services, and set a section 366.26 selection and implementation
hearing. The court found Kemper had received adequate services, but had not made
substantial progress with her case plan and there was no substantial probability of NF's
return to her parents' physical custody in the next six months.
Kemper signed a notice of intent to file a writ petition challenging this order (see
rules 8.450, 8.452), but after Kisiel's supervisor, defendant Gulemi, reviewed the record
and spoke with Kisiel, Gulemi determined there were no viable issues for review. In
March 2009, Gulemi communicated this conclusion to Kemper by letter, and told her to
call him collect if she had any questions or concerns.
This same month, Kemper was arrested and became a dependent of the Los
Angeles County juvenile court, which placed her into foster care. While in foster care,
Kemper gave birth to another child.
Kemper's San Diego County case was then transferred to another attorney in the
same office, Sharon MacGillis. After reviewing the file, MacGillis requested that
supervisor Gulemi transfer the case to an independent attorney, believing there had been
substantial problems with the legal representation in the case. Gulemi declined to
approve the transfer, and instructed MacGillis to instead file a section 388 motion
challenging the factual and legal support for the prior orders and presenting evidence of
Kemper's recent progress in accepting responsibility and taking care of herself.
In May and August 2009, MacGillis filed the section 388 modification petitions,
arguing (1) the court prejudicially erred in failing to appoint a guardian ad litem at the
5
July 2008 hearing; and (2) Kemper's improved circumstances supported an extension of
reunification services or return of the child. On the second ground, MacGillis admitted
Kemper had been "unstable," but argued and presented evidence that her circumstances
had changed because she was now in foster care in Los Angeles, enrolled in school,
attending parenting classes, living with a supportive foster mother, and providing
excellent care to her new second child.
The juvenile court found Kemper made a prima facie case supporting both
grounds for the motions, and then held a combined hearing on the two section 388
petitions and the section 366.26 reference. At this hearing, the court received into
evidence all of the Agency's reports and the minute orders from the prior hearings,
including the detention and jurisdiction hearings. Several witnesses testified, including
Kemper, her foster mother, social worker Hood, and a Riverside County social worker in
Kemper's dependency case. At the conclusion of the evidence and argument, the juvenile
court found that although a guardian ad litem should have been appointed and this "error
was not harmless, . . . the requested modification was not in [the child's] best interests
because [Kemper] could not safely parent [her child]." (N.F., supra, D055922.) The
court thus denied the section 388 motions, and entered a final judgment terminating
Kemper's rights.
Kemper filed a notice of appeal and an appellate attorney was appointed to
represent her.
6
II. N.F. Appellate Decision
On appeal in the N.F. case, Kemper's appellate counsel challenged the orders
denying Kemper's section 388 motions and the judgment terminating her parental rights.
On the section 388 issues, counsel argued the juvenile court abused its discretion in
refusing to return the child to Kemper based on the court's earlier failure to appoint a
guardian ad litem and based on her new and improved circumstances. In challenging the
judgment terminating parental rights, Kemper's counsel argued the judgment was the
result of Kemper's appointed counsel's ineffective assistance in the proceedings below.
Kemper's counsel identified three instances of alleged deficient representation: (1) the
failure to challenge the jurisdictional findings under section 300, subdivision (g); (2)
waiving appointment of a guardian ad litem; and (3) failing to raise these issues in a writ
petition filed after the six-month hearing in which the court terminated reunification
services. (N.F., supra, D055922.)
In June 2010, this court filed N.F., rejecting Kemper's appellate contentions and
affirming the court's section 388 orders and parental-termination judgment. (N.F., supra,
D055922.) On the section 388 issues, we held the juvenile court erred in not appointing a
guardian ad litem and the appointment "may have made a difference in the outcome of
the jurisdiction and disposition hearings," but the juvenile court "acted well within its
discretion" in denying the section 388 motion because a custody change was not in the
child's best interests. (N.F., supra.) We also held the juvenile court did not abuse its
discretion in concluding that Kemper remained unable to safely parent NF and in finding
that Kemper was not a parental figure to NF. (Ibid.)
7
We rejected the ineffective assistance claim on two grounds. (N.F., supra,
D055922.) First, we stated the record "does not affirmatively establish counsel had no
rational tactical purpose" for the alleged deficient performance, and therefore the claim
was not cognizable on appeal. (Ibid.) Second, we stated that "More importantly, we
cannot say the outcome—termination of parental rights—would have been different had
counsel provided what mother believes was effective representation." (Ibid.) We
explained:
"Regardless of counsel's alleged failings . . . , the Agency was justified in filing a dependency petition, and the court reasonably assumed jurisdiction of [Kemper's child]. [Kemper] left [her] newborn . . . without provision for support, and chose her relationship with father over her relationship with her child. . . . [Kemper's] ongoing irresponsible behavior and lack of motivation to participate in services or establish a relationship [with her child] prevented reunification. Once her situation stabilized and she began to access services, [Kemper] was never able to show she could properly parent [her child]. The remedy [Kemper] seeks— dismissing the petition or placing [her child] with her under a voluntary services contract—is not a viable option. [¶] Despite the fact that this case got off track initially when [Kemper] had no representation, it was ultimately [Kemper's] inability or unwillingness to reunify with [her child] that caused her to lose her parental rights. [Kemper's child] is now two years old and has never lived with [Kemper]. She is thriving in the home of maternal relatives who want to adopt her. [The child] deserves to have her custody status promptly resolved and her placement made permanent and secure." (Ibid.)
III. Kemper's Current Malpractice Action
A. Complaint
Shortly before N.F. was filed, Kemper brought a legal malpractice action against
her two former appointed attorneys (De Soto and Kisiel) and their supervising attorney
8
(Gulemi). She alleged defendants acted below the standard of care by: (1) waiving her
right to a guardian ad litem; (2) submitting and failing to object to jurisdiction, even
though Kemper's whereabouts were known when the petition was filed and Kemper did
not abandon her child; (3) allowing a case plan to be put in place that "was doomed to
fail"; (4) failing to pursue a writ or appeal challenging the court's jurisdiction and
reunification findings; and (5) failing and refusing "to file and/or pursue a writ of habeas
corpus" after the court terminated her parental rights. Kemper also alleged defendants
"failed to communicate with [her] in relation to important aspects of her case, and made
extremely important strategic and tactical decisions and mistakes, as well as critical
omissions . . . ." Kemper alleged that as a "direct and proximate result [of these actions],
[she] permanently lost custody of, and contact with, her infant daughter forever."
Kemper said that she "does not seek to overturn the Juvenile Court orders terminating her
parental rights. Rather, [she] seeks money damages for the injury suffered as a result of
the incompetence of her juvenile dependency counsel."
B. Summary Judgment Motion
Defendants moved for summary judgment based on the collateral estoppel
doctrine. Defendants maintained that the N.F. court found the same claimed ineffective
assistance did not cause the termination of Kemper's parental rights, and under collateral
estoppel rules, Kemper is bound by that finding in her legal malpractice action. In
support, defendants submitted minute orders from the juvenile court proceedings; the
appellate briefs in the N.F. appeal; the reporter's transcripts of the July 15, 2008 hearing
appointing De Soto as counsel; the reporter's transcript of the February 19, 2009 six-
9
month review hearing; and the N.F. opinion. The facts contained in these documents are
summarized above.
C. Opposition to Summary Judgment Motion
Kemper opposed the summary judgment. She argued the collateral estoppel
doctrine was inapplicable because the N.F. court rejected the ineffective assistance claim
based solely on the appellate record, and did not consider additional relevant evidence
that could or would have been submitted in a habeas corpus petition. To support this
argument, Kemper submitted various items of this "additional" evidence.
First, she submitted her own declaration, detailing the underlying circumstances
from her viewpoint. In summary, Kemper said that when she was 15 years old she
became pregnant with NF. At the time, she lived in Compton (in the Los Angeles area)
with her boyfriend and her boyfriend's mother, who was her "legal guardian." Kemper
said she had prenatal care and was prepared to care for and raise her child with the help
of her boyfriend's family and another woman who was living in the same residence.
Although Kemper said she did not live in San Diego (and had never lived in San
Diego), the baby was born in San Diego when she was visiting her biological mother.
Within several days, the baby was taken by police officers when she and her mother had
an argument, even though she was prepared to care for her baby. At the time, she gave
the police officers her Compton address and a phone number contact. Because she had
no place to stay in San Diego, Kemper went back to Los Angeles and then made
numerous unsuccessful attempts to locate her baby. She did not attend the May 29
detention hearing because she was never given notice of this hearing. But later that day,
10
Kemper had a telephone conversation with social worker Hood during which she
confirmed her Compton address and that she was living with her legal guardian. Kemper
said she told Hood she "would do anything to get [her daughter] back" and that she "was
ready, willing, and able to care for [her] daughter." Based on these facts, Kemper
claimed that at the time of the jurisdiction hearing, Hood knew of her whereabouts and
knew she had not abandoned her baby, and should have disclosed this information to the
court.
With respect to the July 15 hearing at which the court appointed De Soto to
represent her, Kemper said: "I . . . told [De Soto] that I did not understand the allegations
being level[ed] against me, what was happening in the juvenile dependency proceedings,
why I had to appear in the juvenile court, and why my baby was still being kept from
me. . . . [¶] . . . [¶] . . . De Soto never explained the function of a Guardian Ad Litem to
me, and never asked whether I needed a Guardian Ad Litem appointed for me . . . . [De
Soto's waiver of a guardian ad litem] was done without my knowledge, understanding, or
consent. . . . [¶] . . . [¶] . . . De Soto did not challenge or deny the allegations contained in
the juvenile dependency petition [or] . . . the fact that I was never provided notice of the
Detention Hearing. . . ."
Regarding attorney Kisiel, Kemper said that Kisiel never explained the status of
the case to her or assisted her with reunification efforts. Kemper additionally said that at
the six-month hearing Kisiel also represented her boyfriend (the presumed father) without
obtaining an informed waiver of a potential conflict. She said that Kisiel did not
challenge the truthfulness of the social worker's statements at this hearing even though
11
she had informed Kisiel of (unspecified) false information in the reports and
(unspecified) material omissions from the reports. Kemper attached the letter she
received from supervisor Gulemi in March 2009 indicating her attorneys would not be
bringing a writ petition to challenge the termination of her reunification services.
Kemper also submitted a July 11, 2009 memorandum from attorney MacGillis to
defendant Gulemi, suggesting that Kemper's prior counsel had been incompetent in
failing to challenge the "bogus" section 300, subdivision (g) jurisdictional finding, and in
failing to file a writ petition after the court denied reunification services at the six-month
hearing. In the memorandum, MacGillis recognized that Kemper had "failed
miserabl[y]" to comply with her reunification plan, but noted Kemper was a minor
herself who needed assistance. The memorandum concludes: "I think that there are huge
problems . . . what to do?" MacGillis attached a " 'Three-alarm fire' " sticker to the
memorandum, reflecting her view that the prior legal representation had been
problematic.
Consistent with this evidence, MacGillis testified at her deposition (taken in the
malpractice action) that shortly after she was assigned to the case, she told supervisor
Gulemi that she thought there was a conflict with continuing the representation because
of the manner in which prior counsel had handled the matter, and she wanted to transfer
the case to independent counsel. Gulemi denied this request and instructed her to remain
on the case and to raise the issues in a section 388 motion, which she did.
Kemper also submitted the deposition testimony of several other individuals,
including social worker Hood and attorneys Gulemi, De Soto, and Kisiel. At his
12
deposition, Hood acknowledged that no Agency social worker ever visited Kemper's
Compton home and that he was aware of Kemper's Compton home address before the
court sustained the jurisdictional allegations of parental abandonment. At his deposition,
Kisiel acknowledged he did not investigate the validity of the jurisdictional finding; he
never interviewed social worker Hood or informed Kemper of her right to challenge the
jurisdictional finding; at the six-month hearing, he did not cross-examine the social
worker or present affirmative evidence; and he was aware Kemper wanted custody of her
daughter to be returned to her. At her deposition, De Soto essentially testified consistent
with the record of the July 15 hearing, and/or that she did not recall specific
conversations with Kemper. At his deposition, Gulemi agreed that his office never
specifically challenged the jurisdictional finding and acknowledged a court may dismiss a
dependency petition if a jurisdictional allegation is untrue. He said he made the decision
that there were no legal or factual grounds to challenge the court's order terminating
reunification services.
Kemper also proffered the expert declaration of Nicole Williams, an attorney who
specializes in juvenile dependency appellate practice. Williams opined that Kemper's
attorneys breached the standard of care in numerous ways, including (1) De Soto failed to
timely challenge the factual basis for the jurisdictional finding; (2) De Soto improperly
waived Kemper's statutory guardian ad litem right; (3) Kisiel failed to present affirmative
evidence or cross-examine the social worker at the six-month review hearing; (4) Gulemi
improperly refused to approve a writ petition challenging the termination of reunification
services; and (5) Gulemi improperly failed to declare a conflict in 2009 and reassign the
13
case to an independent attorney. Williams also opined these errors caused Kemper's
damages, including the termination of her parental rights.
D. Defendants' Reply Papers
In reply, defendants argued that Kemper's submitted declarations, deposition
transcripts, and memoranda were irrelevant to the collateral estoppel issue because the
N.F. court had already rejected the argument that the claimed attorney negligence caused
Kemper's claimed losses (the termination of her parental rights), and therefore she was
barred from presenting new evidence and relitigating the issue. Defendants also
submitted additional portions of Kemper's deposition in which she testified contrary to
her later declaration.
Defendants also raised 62 separate objections to Kemper's evidence. Regarding
Williams's declaration, defendants asserted that Williams's opinions lacked foundation,
were speculative, and constituted improper expert testimony. Regarding Kemper's
declaration, defendants argued her statements lacked foundation, were irrelevant, and
we need not discuss the evidentiary rulings in detail because they were not prejudicial to
Kemper. As discussed above, even assuming we consider the evidence proffered by
Kemper, the summary judgment was proper. Additionally, because the County's
evidence was mainly documents from the prior N.F. action, the court properly overruled
Kemper's objections.5
5 Both parties discuss this court's prior unpublished appellate opinion involving Kemper's separate federal civil rights action against social workers and police officers involved with the dependency proceeding. (Kemper v. County of San Diego (Apr. 22, 2013, D059637).) Because this prior opinion resolved different issues and causes of action, the opinion is not relevant under doctrines of law of the case, collateral estoppel, or res judicata. As such, it may not be cited or relied upon by the parties. (Rule 8.1115.) In any event, our decision here is consistent with the prior Kemper opinion.
30
DISPOSITION
Judgment affirmed. The parties to bear their own costs on appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
31
AI Brief
AI-generated · verify before citing
Holding. The court held that the doctrine of collateral estoppel bars a parent from relitigating the issue of whether her attorneys' ineffective assistance caused the termination of her parental rights, as that issue was already decided against her in a prior dependency appeal.
Issues
Does the doctrine of collateral estoppel bar a legal malpractice claim when the issue of causation was previously decided in a juvenile dependency appeal?
Should a new exception to the collateral estoppel rule be created for legal malpractice claims based on an analogy to habeas corpus procedures?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Causation is an essential element of a legal malpractice claim, and Kemper is barred by the collateral estoppel doctrine from relitigating the issue of whether her juvenile dependency attorneys caused the termination of her parental rights.”
“We decline Kemper's request that we create a new exception to the collateral estoppel rule based on an analogy to the writ of habeas corpus procedure applicable in juvenile dependency cases.”
“Despite the fact that this case got off track initially when [Kemper] had no representation, it was ultimately [Kemper's] inability or unwillingness to reunify with [her child] that caused her to lose her parental rights.”