Thursday, October 17, 2002
S.C. Rejects Custody Case Punctuated by Charges of Judicial Bias
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday denied review of a Los Angeles Superior Court judge’s order granting custody of a developmentally disabled child, now 16, to her father, whom the mother and county officials accused of having molested the child.
Not a single justice voted to grant review of the unpublished opinion of this district’s Court of Appeal in In re Marriage of C., B146948. Requests for publication were denied.
The parties were not identified by surname in the opinion, but their names have long been public, largely because of a media campaign by the mother and her supporters.
That campaign figured prominently in Los Angeles Superior Court Judge Arnold Gold’s decision to award custody of the child to Ovando Cowles. The judge agreed with experts who testified that Idelle Clarke was obsessed with proving that her ex-husband had molested the child, and that her efforts—leading to news accounts including a New Times Los Angeles article that the judge found to have been sensationalized and full of inaccuracies—had harmed young Heather.
Clarke and Cowles were married in 1985. Heather was born in 1986 and her parents have been fighting over custody since 1993.
The county Department of Children and Family Services filed a dependency petition in 1994, charging that Heather had been harmed by the protracted custody battle and sexually abused by her father, and that the mother’s emotional problems rendered her incapable of dealing with the child’s special needs.
The dependency proceeding was joined with the ongoing divorce/child custody battle and assigned to Los Angeles Superior Court Judge Irving Feffer.
The judge granted the petition, solely on the ground that the custody battle was harmful to the child. The evidence offered to support the molestation claim, he found, was “not very convincing at all.”
Dependency court jurisdiction was eventually terminated. The parties agreed in 1996 that the mother would have temporary custody, with visitation rights for the father.
Clarke, who had accused Feffer of judicial misconduct, later made similar allegations against Judge Carol Koppel, a retired municipal court judge from San Bernardino sitting on assignment. Koppel held a hearing in 1998 that resulted in a Clarke being labeled a “flight risk” and escorted to her car by bailiffs on the judge’s instructions.
That action led to a detour into federal court, as Clarke sued the judge, the court, and her daughter’s court-appointed lawyer, Diane Gould-Saltman, for violation of her civil rights.
U.S. District Judge Dickran Tevrizian dismissed that case, citing the Younger v. Harris abstention doctrine, and the Ninth U.S. Circuit Court of Appeals affirmed two years ago.
Gold, whose ruling was vigorously attacked by an unusual assortment of groups—ranging from the conservative Judicial Watch to the California affiliate of the National Organization for Women—issued an 82-page decision. Cowles was given custody, with Clarke’s visitation rights limited to conjoint therapy sessions.
In upholding that order, Div. One of the Court of Appeal—Justice Robert Mallano wrote the opinion—agreed with Gold that evidence of the alleged molestation was precluded by Feffer’s earlier order, which the Court of Appeal had upheld in an unpublished opinion.
Since DCFS and Clarke were in privity, Mallano said, Feffer’s ruling was res judicata.
The justice also rejected the contention that the seven years of delays in reaching the final custody ruling denied the mother due process. The delays were not the fault of the courts, Mallano said, but resulted from Clarke’s failure to follow court rules, the need for multiple evaluations, the necessity of special proceedings resulting from Clarke’s judicial misconduct complaints, and Clarke’s employment of a New Orleans attorney who had to travel to Los Angeles for court hearings.
Mallano belittled the contention, raised by NOW in an amicus brief, that Gold had improperly relied on the so-called “Parental Alienation Syndrome” as a basis for changing custody. NOW called the PAS theory “so illogical and nonsensical that its application denied due process of law.”
Gold did not rely on PAS, but on substantial, specific evidence of Clarke’s efforts to persuade the child that her father had molested her and was otherwise a bad person. “Indeed, the trial court went to great lengths to disavow reliance on PAS, stating that it had not based its rulings on PAS and did not even know whether it existed.”
Koppel’s custody order, and later Gold’s, were based on “extensive evaluations...conducted by qualified professionals,” Mallano said.
The jurist went on to say that Gold properly considered the effect of Clarke’s media effort in awarding custody to Cowles. The judge did not violate Clarke’s free speech rights, Mallano reasoned, but reasonably assessed the impact that media coverage was likely to have on the child.
Mallano pointed out in a footnote that Gold had declined a suggestion by Cowles’ counsel that the media be prohibited from writing about the case, finding that this would violate the First Amendment.
Copyright 2002, Metropolitan News Company