Thursday, September 27, 2012
Page 1
C.A. Says Inmate Is Entitled to Court Access to Seek Visitation
By a MetNews Staff Writer
Denial of the bid by a state prison inmate for child visitation rights was improper where the prisoner was neither transported to court for the hearing nor otherwise permitted to show his side, the Court of Appeal for this district ruled yesterday.
Presiding Justice Arthur Gilbert of Div. Six wrote for the majority, with Justice Steven Perren joining him. Justice Kenneth Yegan penned a dissent, accusing the majority of ignoring practicalities.
The appellant is Robert Broglia whose commission of a burglary was a “third strike.” He is serving a 34-year prison sentence in Kern Valley State Prison.
Amy Brenner and her child visited Broglia, the child’s father, more than 400 times during the period from 1998-2005. The visits stopped, according to Brenner, because the prison setting was intimidating to the child and she was frightened by Broglia.
Brenner also maintained that Broglia was a member of a prison gang, the “Nazi Low Riders,” and that he had threatened the last time she visited.
Transportation Not Required
Gilbert wrote:
“A prisoner does not generally have the right to be transported to personally appear in civil court.… A statutory exception to that rule exists, but it does not apply here because this was neither a proceeding to terminate Broglia’s rights or to adjudicate the child a dependent….The trial court correctly concluded that its decision whether to order Broglia to be transported to court was discretionary….
“But a prisoner may not be deprived, by his or her inmate status, of meaningful access to the civil courts if the prisoner is both indigent and a party to a bona fide civil action threatening his or her personal or property interests….Here, Broglia’s personal interest in parental visitation was threatened. A parent has a fundamental right to a relationship with their child, interference with which may only be justified by compelling necessity, such as abuse….Any child visitation order must comport with due process.”
Some sort of access to the court had to be afforded, Gilbert declared. He suggested these possibilities:
“(1) deferral of the action until the prisoner is released; (2) appointment of counsel for the prisoner; (3) transfer of the prisoner to court; (4) utilization of depositions in lieu of personal appearances; (5) holding of trial in prison; (6) conduct of pretrial proceedings by telephone; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures.”
Dissenting Opinion
Yegan protested:
“Before an appellate court orders the trial court to take a trip, it should consider the possibility of arriving at a final destination….Here, even if appellant is given some access to the trial court, I do not believe that he can arrive at his destination. Absent contempt proceedings (which, on this record, seems pretty far-fetched), there is no way that the trial court can, in reality, force mother to transport the minor to prison. Mother is the sole legal custodial parent and is given the right to parent her child as she sees fit….She has opined that it is dangerous to take her daughter to prison for such visits. The trial court has expressed agreement with this opinion.
“It is unlikely that the trial court would allow a stranger or one of appellant’s “out of custody” associates in the “Nazi low rider’s” to provide transportation. If mother refuses to comply with a visitation order, the trial court would not change custody to appellant who is serving 34 years to life. In these circumstances, in my opinion, it is a waste of scarce resources to have the trial court revisit appellant’s request for access to the trial court and for court-ordered visitation. Only in the most compelling of cases should there be forced visitation in the prison setting.”
The unpublished decision came in Broglia v. Brenner, B227927.
Copyright 2012, Metropolitan News Company