Metropolitan News-Enterprise


Monday, December 7, 2015


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C.A. Rejects Malpractice Action in Dependency Case

Justices Say Claims Were Litigated in Prior Appeal, Barred by Collateral Estoppel




A woman who lost her parental rights in dependency court Friday lost her malpractice claim against the attorneys who represented her in that case.

Collateral estoppel bars Johnnieisha Kemper’s action against San Diego County and attorneys Thomas Kiesiel, Tracy De Soto, and Robert Gulemi, the Fourth District Court of Appeal ruled. Justice Judith Haller, writing for Div. One, said the malpractice issue was resolved against Kemper when she unsuccessfully argued in her prior appeal that the attorneys’ negligence caused the loss of her parental rights.

 Kemper was 16 years old when she gave birth to her daughter in 2008. The police removed the child when she was less than two weeks old, and the dependency petition alleged that she had abandoned her daughter.

First Appearance

Kemper, who was apparently living in Compton at the time, appeared in court in July 2008, and De Soto was appointed as her attorney. A six-month review hearing took place in February 2009, with Kisiel acting as counsel.

The county Health and Human Services Agency and minor’s counsel urged the court to terminate reunification services, arguing that the mother’s efforts to reunify were minimal. The court agreed—rejecting Kisiel’s arguments that Kemper had made best efforts, considering the distance between her residence and San Diego—and found there was no substantial probability that Kemper would be able to regain custody within the following six months.

Gulemi, who was De Soto and Kiesiel’s supervisor, determined there were no grounds to seek writ review. Another attorney in the same office, Sharon MacGillis, however, subsequently filed a petition for modification of the order, arguing that it was erroneous for the court not to appoint a guardian ad litem at the beginning of the process, and that Kemper’s circumstances had significantly approved.

Trial Court Ruling

The court held a consolidated hearing on the modification petition and on termination of parental rights. The judge agreed that the lack of appointment of a guardian ad litem was erroneous and prejudicial, but denied modification on the ground that Kemper “could not safely parent” the child.

The court then granted final judgment terminating parental rights.

On appeal, the court held in an unpublished opinion that the denial of the modification petition was not an abuse of discretion because a change of custody was not in the child’s best interests. As for the mother’s claims of ineffective assistance of counsel, the panel said counsel may have had tactical reasons for what the mother claimed were errors or omissions, and that, in any event, “we cannot say the outcome—termination of parental rights—would have been different had counsel provided what mother believes was effective representation.”

Kemper filed her malpractice suit shortly before the Court of Appeal ruled in the dependency case. She claimed the attorneys were negligent in waiving her right to a guardian ad litem, not opposing the exercise of dependency jurisdiction, not objecting to the case plan, not challenging the court’s early rulings by writ or appeal, and not bringing a habeas corpus petition to challenge the termination of parental rights.

Summary Judgment

San Diego Superior Court Judge Judith Hayes granted the defendants’ summary judgment motion based on collateral estoppel. The dependency litigation, including the appeal, established that Kemper’s “parental rights were terminated as a result of her own actions, and not as a result of her attorneys’ conduct,” Hayes ruled.

Haller, writing for the Court of Appeal, agreed.

The case, she said, meets all of the elements of traditional collateral estoppel—a final judgment on the merits, in an action to which the plaintiff was a party and in which the dispositive issue was actually litigated.

The justice rejected the claim that the malpractice issue was not actually litigated in the dependency case.

“We reasoned [in the prior appeal] that Kemper’s own conduct established that she was unwilling and unable to adequately care for her child and thus she (and not her counsel) was responsible for the court’s termination judgment.”

The case is Kemper v. County of San Diego, 15 S.O.S. 5825.


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