Tuesday, May 25, 2010
Page 1
Deployed Sailor’s Right to Hearing Violated, C.A. Rules
Access to Telephonic Proceeding Held Inadequate Under Relief Statute
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal has ruled that a San Diego judge should have stayed dependency proceedings involving children of a Navy technician who presented a letter from his commanding officer indicating that he had to deploy to Iraq and could not attend a hearing.
Reasoning that the Servicemembers Civil Relief Act is to be construed liberally, Div. One said the letter supported an inference that the man met or at least substantially complied with the act’s provisions, entitling him to a mandatory, extendable 90-day stay. The April 27 panel opinion by Justice Gilbert Nares was certified yesterday for publication.
Nares rejected an argument that the father could have appeared telephonically, noting that nothing in the act indicates that a telephonic appearance is sufficient to protect a servicemember’s rights.
The San Diego County Health & Human Services Agency initiated dependency proceedings on behalf of the servicemember’s 2-year-old daughter and 1-year-old son after a domestic violence incident shortly before his Feb. 19, 2009, deployment order was to take effect. The children’s mother and father were never married, and the mother—during an argument after the father told her he planned to end their six-year relationship—poured coffee over his head and hit him with a bowl in front of the children, causing him lacerations and contusions.
The agency alleged that both the father and the mother exposed the children to domestic violence and failed to adequately protect them from risk of physical harm. However, the mother, a member of the Navajo Nation, argued at a detention hearing that she should have custody because she agreed to participate in voluntary services and there was little risk of continued domestic violence while the father was deployed.
The father, a member of the Hopi Tribe who was already sequestered pending deployment, did not appear, but through counsel sought for the children to be detained by his parents in Arizona.
San Diego Superior Court Judge Carol Isackson ordered the children temporarily detained with their mother, and held a jurisdictional and dispositional hearing the following April in which both the Navajo and Hopi tribes sought to intervene. Both sides sought custody and objected to the other’s request, so Isackson set a contested hearing for June 9, 2009.
The father then sought to stay the proceedings under the Servicemembers Civil Relief Act, and submitted a letter from his commanding officer confirming that he was under orders to deploy to Iraq for approximately one year and would not be able to attend the scheduled hearing.
The agency and the Navajo nation, however, opposed the request, arguing that the father did not meet the act’s technical requirements.
The act allows a military servicemember who is party to a civil action to stay proceedings for 90 days if the servicemember sets forth facts showing “current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear.”
The servicemember must also provide a letter from a commanding officer stating that the current military duty prevents appearance and that military leave is not authorized at the time of the letter, and can apply for an additional stay based on continuing material affect of military duty on ability to appear.
Isackson denied the father’s request after concluding that the letter was insufficient under the act. She noted that the letter did not state that the father could not appear telephonically, and she questioned why he had not attempted to schedule the hearing during either of two short visits to San Diego in the prior months while he was on leave from bases at which he trained before actually leaving for Iraq.
Isackson left the children with their mother, but the father appealed and the Court of Appeal reversed.
Nares explained that the letter raised an inference that the father was not authorized to take leave, adding that the act’s requirement that a servicemember demonstrate inability to appear contemplates only physical, not telephonic, proceedings.
He also said that Isackson abused her discretion, even if the father’s application was insufficient.
“It is undisputed that father was unavailable to appear at the June 9 jurisdiction/disposition hearing,” he wrote. “The evidence showed that at that time he was in Iraq. There was no detriment to mother or the children as they remained detained with her. The court should have granted a stay at least until information could be received from father’s commanding officer as to whether he would be available to appear prior to the end of his deployment.”
Justices Richard D. Huffman and Terry B. O’Rourke joined Nares in his opinion.
The case is In re Amber M., 10 S.O.S. 2762.
Copyright 2010, Metropolitan News Company