In one of the most bizarre decisions opined by Justice Miller,(a prior Presiding Judge of the Riverside Superior Court), he withdrew his original tentative decision reversing legal custody and substituted it with one affirming the trial court’s orders. The court of appeal’s actions confirm that their tentative opinions are viewed as fixed orders that cannot be swayed by oral argument.
Justice Miller also opined in essence that the trial court does not need to adhere to procedural and substantive due process when it comes to non noticed exparte orders without application or notice as the initial order that terminated the mother’s parental rights in February of 2007 was done exactly under those circumstances. The mother was not “granted telephone visits”. The mother had her parental rights terminated, only allowing supervised telephone contact. The appellate court as inferred in his opinion is not required to address the lack of procedural and substantive due process as to how orders were created. Every criminal appellate lawyer would shudder in horror if the same lack of procedural and substantive due process would be applied to criminal law. Hypothetically speaking using Justice Miller’s arguments, let’s throw every person accused of a crime in jail and sentence them immediately without the right to a hearing of any kind to prove guilt or innocence or the right to a jury of his/her peers. That is the legal standard that this appellate court and the trial court are advocating for parents in family law proceedings.
In February of 2007, there was a hearing scheduled for another matter, no custody hearing was on calender and the court initiated an exparte without a written application or notice to be heard in any capacity without allowing said mother to defend herself.
In the orders leading up this appeal there was a motion on calender that addressed the February 2007 orders which the trial court did not address in an abuse of discretion and the appellate court declined to consider in its epistle.
So in other words folks, family law matters in the Riverside Superior court or the relevant Court of Appeal, are not subject to equal protection due process standards that every other proceeding and Court has to adhere to.
Strangely those due process concerns were already addressed in Santosky v. Kramer, 455 U.S. 745 (1982) [71 L. Ed. 2D at p. 606 which held that due process requires a finding of parental unfitness to be supported by a minimum of clear and convincing evidence to terminate parental rights. Newsflash folks merely making an order based on an illegal exparte caused by false accusations, without notice or opportunity to heard in any capacity, is not the clear evidence standard required to TERMINATE parental rights.
In addition CA title five rules which relate to exparte proceedings in family law specifies that an exparte application has to be in writing and there has to be notice given BEFORE a hearing.. http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_151
The same holds for all civil matters, (family law matters are also considered to be civil matters,) pursuant to title three rules of court which requires a written application to be filed BEFORE a hearing and notice BEFORE a hearing, pursuant to CA rules of court 3.1201-3.1204 http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1201
This case has already generated over $ 100,000 in legal fees and supervised visit fees and of course there is a vested interest in keeping the legal judicial rape and battery going. Heaven forbid that just ONE person do the right thing and acknowledge what occurred.