James W. v. Superior Court

• Citation: 17 Cal.App.4th 246,21 Cal.Rptr.2d 169
• Decision Date: 16 July 1993
• Docket Number: No. D017377,D017377
• Court: California Court of Appeals
• Parties: JAMES W. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Kathleen GOODFRIEND et al., Real Parties in Interest.

Page 169

21 Cal.Rptr.2d 169

17 Cal.App.4th 246

JAMES W. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent;

Kathleen GOODFRIEND et al., Real Parties in Interest.

No. D017377.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1993.

As Modified Aug. 16, 1993.

[17 Cal.App.4th 248] Milton J. Silverman, San Diego, for petitioners.

No appearance, for respondent.

Eugene P. Kenny, Gina Lacagnina, James McFall, Neil, Dymott, Perkins, Brown & Frank, and Lewis A. Present, San Diego, for real parties in interest.

BENKE, Associate Justice.

FACTUAL AND PROCEDURAL BACKGROUND ¹

1. The Report of Child Abuse

On the morning of May 9, 1989, eight-year-old Alicia W. complained of pain when she went to the bathroom. Her parents brought her to the Navy medical unit by 8:30 a.m. The family was then escorted to Children's Hospital where staff determined Alicia had been raped and sodomized, and filed a report under the Child Abuse and Neglect Reporting Act. Alicia stated that a man had come through the bedroom window and hurt her.

Late that afternoon, a hospital worker and detective accused Alicia's father of the molest. In an attempt to prove the father's innocence, the parents agreed to have their home searched and talk with the police, and the father submitted to a rape test, a DNA test and three polygraph tests.

2. The Defendants' Conduct

By May 11, the Department of Social Services (DSS) filed a dependency petition and the following day had Alicia placed in temporary foster care. Meanwhile, DSS investigative employee Diane Anderson interviewed the parents and referred them to a private family counselor, Kathleen Goodfriend. At her first session with the family on May 11, Goodfriend accused the father of the assault.

The civil complaint filed by Alicia's family characterizes this as the start of a two and one-half-year campaign to convict the father and have Alicia adopted, a campaign None of this was known by the parents, however, who first appeared in juvenile court in May 1989. In July 1989, attorney Lewis Present advised them to plead nolo contendere to a charge of neglect ² and assured them all other charges would be dropped. Present added that, assuming the parents passed a psychological evaluation and found a 24-hour caretaker, Alicia would be home in a week. The parents reluctantly accepted the plea bargain ³ to get their daughter home and put the experience behind them. Notwithstanding that the psychological exam was favorable and the family provided the names of three caretakers (including Alicia's grandmother) to Anderson, counselor Goodfriend refused to cooperate and misrepresented facts to the court, and the DSS later backed out of the agreement.

that included concealing evidence and inducing confessions and accusations by fraud, coercion, and perjury. Among other things, the family alleges they later discovered: (1) in May 1989, a man named Carder entered a bedroom window across the street from where the family was living, abducted a four-year-old girl and attempted to rape her; (2) Carder, a registered sex offender, was arrested in June 1989; (3) DSS investigator Anderson and family counselor Goodfriend were aware of the Carder molest; (4) in early July 1989, Jane Via, the deputy district attorney prosecuting Carder, discussed the Carder case with Goodfriend; (5) by August 1989, the deputy district attorney was prosecuting four criminal cases involving minors against Carder; (6) the deputy district attorney took over Alicia's case in juvenile court for the county counsel's office; (7) in June 1990, after learning Carder had been positively identified by DNA testing in the rape of a four-year-old and that the detective now had reservations about Alicia's father's guilt, the DSS worker and Goodfriend discussed ways to twist the detective's statements; and (8) in August 1991, the deputy district attorney was not truthful about the facts in the Carder molest cases.

Meanwhile, for over a year after the attack, Alicia stood firm in her insistence that her father was not the assailant. On May 9, 1989, the day she was first examined, Alicia told the Children's Hospital worker and two detectives that a man had come through the bedroom window. In June 1989, she told her temporary foster mother that her dad did not assault her, and the foster mother in turn relayed the information to DSS worker Anderson and counselor Goodfriend.

Soon after she was placed with the Gregorys ⁴ in July 1989, however, pressure was mounted to get Alicia to say her father was the perpetrator. Directing Alicia to say her father was guilty, Goodfriend repeatedly told the child: (1) she knew Alicia's father had molested her; (2) Alicia would feel a lot better if she admitted it; (3) the "story" Alicia had been telling was not believable; (4) Alicia's mother had been assaulted by Alicia's grandfather; and (5) if she wanted to go home, Alicia would have to say her father was the perpetrator. At Goodfriend's direction, Mrs. Gregory also took Alicia to the bedroom "every night" and said "over and over again" Alicia's father had raped her. Mrs. Gregory kept telling Alicia she would have to say her father was the perpetrator if she wanted to go home.

At the same time, the child was completely cut off from her family. In October 1989, the court found reunification in Alicia's best interests, ordered there be no discussion of adoption with the child, and set weekly visitation with the parents. However, Goodfriend and the Gregorys refused By spring 1990, the juvenile court judge wanted to talk to Alicia in chambers, ⁶ the police were anxious to have Alicia attend a line-up with Carder present, and a contested disposition hearing was imminent. Goodfriend's May 1990 notes say "I'm really starting to put the pressure on now" and "she's almost ready to tell." Under intense pressure from Goodfriend and the Gregorys to change her story and reminded this was the only way she could go home, Alicia yielded at the end of June 1990, finally telling the Gregorys that her father was guilty, and the Gregorys in turn "reported" it. Coached by Goodfriend and Mrs. Gregory, Alicia testified against her father in July.

to follow court orders ⁵ with the result that Alicia's mother did not see her for a full year and her father did not see her for two years.

In September 1990, Goodfriend began "conjoint" therapy with Alicia, Alicia's mother and younger brother Joshua. As part of the therapy, Goodfriend: (1) ordered the mother to treat the father as if he were "dead" when Alicia was present; (2) accused the mother in front of her young son Joshua of participating in Alicia's rape; and (3) informed Alicia without first obtaining the mother's consent that Alicia's mother had been raped by Alicia's grandfather. By November 1990, the mother was so overwhelmed that she attempted suicide and was confined to a locked psychiatric ward where she stayed until January 1991.

Meanwhile, in December 1990, a month after the mother's suicide attempt, the father was arrested and charged with raping and sodomizing Alicia. New counsel for the father moved for further tests based on later discovery of stains on Alicia's nightgown the first criminalist from the San Diego police department had missed; ⁷ he also moved to reopen the juvenile court proceedings based on the new evidence.

In August 1991, in response to the attempt to reopen the juvenile case, the deputy district attorney (having left the district attorney's office to join the county counsel) allegedly was not truthful about the facts of the Carder assaults. In concert with Goodfriend and the Gregorys, Via also moved to have Alicia permanently adopted by the Gregorys. Shortly before the hearing, however, the new forensic expert, Dr. Ed Blake, completed his tests and the results showed Alicia could not have been raped by her natural father.

On October 15, 1991, the court halted adoption proceedings, ordered that steps be taken to reunite Alicia with her family, and removed Goodfriend as therapist. On October 17, Dr. Blake excluded the father as the assailant by DNA testing and declared that Carder's blood type fell into the 9 percent of the population of possible donors for Alicia's rape. On November 15, the court found good cause to grant the family's petition to vacate the nolo plea. All charges against the father were dropped.

3. The Family's Suit

The family filed suit on January 31, 1992, and later amended their complaint to allege 69 causes of action against Goodfriend, the Gregorys and the family's former lawyers, among others. Goodfriend, the Gregorys and attorney Present demurred and moved to strike.

The trial court sustained the demurrers without leave to amend to all but nine causes of action. ⁸ Demurrers to the vast

majority of the causes of action were sustained based on the Child Abuse and Neglect Reporting Act. The court also sustained demurrers to selected causes of action under the Foster Care Placement statute, the abduction statute and statute of limitations; and it granted the motion to strike as to two paragraphs.

4. This Petition

In this petition for writ of mandate, the family argues the courts have moved beyond the Child Abuse and Neglect Reporting Act, Penal Code sections 11164 et seq., to come full circle so those who abuse children in the name of preventing abuse are immunized by the very law that was meant to protect children. The family also challenges various other rulings.

We deny the petition with respect to whether the statute of limitations bars malpractice claims against attorney Present who remains in the case on a fraud cause of action, whether Goodfriend and the Gregorys may also be liable under the Foster Care Placement statute or the abduction statute, and whether the court properly struck two paragraphs from this 174-page, 559-paragraph complaint. Appellate courts simply do not have the time or resources to police law and...