Monday, December 1, 2014
C.A. Calls Custody Evaluator Biased, Orders Her Off Case
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has ordered a child custody evaluator removed from a Los Angeles Superior Court case, saying she showed persistent bias in favor of the child’s father.
Los Angeles Superior Court Judge Rita Miller, sitting on assignment in Div. One, said Los Angeles Superior Court Judge C. Virginia Keeny “erred in failing to remove [Ann] Convertino for bias against [the mother] and to strike Convertino’s evaluations, considering the totality of the circumstances.”
Convertino told the MetNews late Wednesday that she had just learned of the court’s opinion.
Convertino, a licensed clinical social worker practicing in the San Fernando Valley, prepared two evaluations for the custody dispute between the parents of a 4-year-old boy with special needs. The parents were identified only as Thomas O. and Leslie O. in order to protect their privacy, Miller said in a footnote.
‘Mental Status’ Comments
In moving to kick Convertino off the case, the mother’s attorneys cited a number of comments in the original, November 2012 evaluation, including 78 references to their client’s “mental status, problems and issues” and the claim that the mother, a nurse, might have “Munchausen by Proxy Syndrome” based on the amount of medical information about the child she had conveyed to the evaluator, although Convertino said she was repeating a comment made by another professional and not making any such finding herself.
Several events that occurred subsequent to that evaluation, and related documents, were cited as well, including:
•Convertino’s Nov. 20 communication to the mother’s therapist, Margaret Burr, who asked that “implications of severe mental illness” be removed from the report because there was no such illness and the mother was functioning perfectly normally outside of how she was dealing with the custody fight. She also said Convertino had mischaracterized an incident between the parties to make it appear that the mother had “hit” the father rather than that the mother had pushed him to get him away from her after he approached her in a threatening manner. Convertino responded that she could not change the report because “it has been submitted to the attorneys.”
•Burr’s email to the attorneys, expressing her opinion that Convertino was biased, and had omitted facts unfavorable to the father from her evaluation and mischaracterized the mother’s mental condition.
-Complaints from other professionals, including the child’s pediatrician and a physician who had recently treated him, that they had been quoted out of context, or that information they had provided had been omitted. Both physicians, for example, said the evaluator had left out their statements expressing a belief, based on the location and nature of injuries suffered by the child, that his father had allowed him to ride a bicycle without a helmet.
•The submission of a “revised” evaluation clarifying the source of the Munchausen’s claim, contrary to the evaluator’s statement to Burr that the evaluation could not be changed, and the omission of the additional information received from Burr and the physicians from that report.
•Statements by Convertino to the attorneys, complaining that the mother had shared the report with Burr and the physicians, contrary to what the evaluator took to be the confidential nature of the report.
•“Cozy, little emails,” as the mother’s counsel characterized them, in which the father thanked the evaluator for her work and she offered solace and a suggestion that delays in the case meant that his attorneys might not be acting in his best interests and that perhaps he should change counsel.
Keeny pronounced the case “close,” but said the mother had not made a showing of bias sufficient to require the evaluator’s removal from the case, or to strike her reports.
No ‘Appellate Micromanagement’
Miller, writing for the appellate panel, disagreed. While “to endorse appellate micromanagement of every communication or act by the evaluator would make it impossible for evaluators to perform their very difficult and crucial functions,” she said, the court has to step in when the facts as a whole warrant.
This was, she said, such a case. Convertino’s actions, in particular her willingness to make changes in her initial report that presented the father in a more favorable light, while ignoring information favorable to the mother, and her exchange of emails with the father discussing matters beyond the scope of the evaluation, such as his choice of counsel, established bias, Miller said.
The father’s argument that disqualification was unnecessary, Miller pointed out, was undermined by, among other things, an email he sent to Convertino pointing out “that her evaluation was so favorable to him that he and his friends had planned a victory party when they read it.”
Attorneys on appeal were Lipton & Margolin’s Hugh A. Lipton and Brian Gregory Magruder for the mother and .Paul S. White of Fletcher, White & Adair, along with Denise Susan Placencio of Dacorsi, Placencio & Rumsey, for the husband.
The case is Leslie O. v. Superior Court (Thomas O.), 14 S.O.S. 5376.
Copyright 2014, Metropolitan News Company