F iled 3/ 4 /14 Metzger v. Metzger CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RAPHAEL METZGER,
Appellant
,

v.
TAMMY METZGER,
Respondent;

___________________________________ EVE LOPEZ and M.M., a Minor,
Petitioners,

v.

SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
Respondent;

RAPHAEL METZGER,

Real Part y in Interest. B2 51861 c/w B 252152
(Los Angeles County Super. Ct. No. ND062399 )

B2521522

ORI GINAL PROCEEDINGS in mandate. Thomas Trent Lewis , Judge. O rder

affirmed. The Petition for Writ of Mandate is dismissed as moot.
Lopez & Grager and Eve Lopez for Petitioners.
Metzger Law Group and Ra phael Metzger in pro. per., for Appellant and Real
Party in Interest

. No appearance for Respondent.
Brandmeyer Gilligan & Dockstader and Brian K. Brandmeyer for Real Party in
Interest, Tammy Metzger

.

_______________________________________3

Appellant Raphael Metzger (Raphael) , former husband of respondent
Tammy Metzger (Tammy) , appeals from an order appointing counsel to represent the
parties’ minor daughter
, M. , in the parties’ custody dispute

. 1 On appeal, Raphael
contends that the order appointing minor’s counsel violated his constitutional rights and

was an abuse of discretion . We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Tammy and Raphael we re married on November 2, 2003, and t h eir daughter, M.,

was born the following year

. O n July 30, 2009, Tammy filed a petition to dissolve her
marriage with Raphael. The court ordered a separate trial on child custody issues and

scheduled trial for May 2011.
On April 12, 2011, Tammy requested a trial continuance in order to give her time

to have M. evaluated for developmental delays. Tammy stated that she had only
recently become aware that her daughter might have autism. Raphael opposed the
request for a continuance. He argu ed that Tammy had already obstructed the progress
of the proceedings by refusing to stipulate to a separate trial on child custod y issues,
failing to appear for her deposition, and refusing to agree to alternate dates for her
deposition, among other action s. Raphael also argued that Tammy’s “ ‘new’ concern
about development al delay has no basis in real ity, [wa]s a stall tactic, and fail[ed] to
justify a continuance of the trial.”

1 For simplicity and clarity, we refer to the parties by their first names. We intend no disrespect or undue familiarity.4

It appears that the court granted multiple trial continuances. 2 On January 20,
2012, the court entered a judgment of dissolution as to marital status only. The trial on
custody issues appears to have begun in early 2013 and was eventually continued to

October 21, 2013. In or around August 2013, it appears that Tammy filed a req uest for
an order for an autism evaluation of M. Raphael opposed the request, arguing that M.
had already undergone 12 such evaluation sessions

.
The court denied Tammy’s request and issued an order to show cause as to why
Eve Lopez should not be appointed as minor’s counsel for M. , and why Raphael should

not advance $100,000 to minor’s counsel as a retainer for her services, $50,000 of
which would be chargeable to each party against the ir share of community property.
Lopez has a m a ster’s degree in Fo rensic Psychology as well as a juris d octor degree
, and has been appointed as minor’s counsel in dozens of cases involving a child with
special needs

. Tammy filed a notice of non

- opposition to the appointment of minor’s counsel.
Raphae l opposed the order to show cause on the grounds that the appointment of

minor’s counsel viola ted his constitutional right to determine his daughter’s nee ds and
represent her interests , among other arguments

. At the hearing on Sep tember 16, 2013,

the cour t noted that the issue of whether M. had autism would affect the court’s custody

award because, if M. did not have autism, “her mom wants to subject her to a lot of stuff
she should not be[] subjected to,” and if M. did have autism, “ t hen I need to make su re

2 The appellant’s index doe s not document all the proceedings in the trial court.5

that she gets the resources that she needs

. ” The court further indicated that he “fe[lt]
that [M.] n eeds someone to speak for her.”
Raphael argued that Lopez was unfairly biased because she has an autistic child.

The court responded that “[t]here’s n o evidence but speculation that [Lopez] would be
inclined to be biased. And I think what she might be more inclined to be is
knowledgeable

. . . . I see that she may have more knowledge than the average family
law lawyer about matters related to autism s pectrum disorder. That’s, frankly, why

I chose her

. . . . ” The court issued an order appointing Lopez as minor’s counsel “[t]o
assist the court in determining th e best interests of the child.”
Raphael moved ex parte for the “revocation of the appointment of Eve Lopez as
minor’s counsel, ” and the court denied the request. Raphael then appealed the order
appointing minor’s counsel

. Lopez filed a petition for writ of mandate seeking to have
the appeal dismissed, and Tammy filed a joinder. On No vember 19, 2013, we issued an
order consolidating the appeal and petition for purposes of review by this court.

CONTENTIONS
Raphael contends that the court violated his constitutional rights and abused its

discretion by appointing minor’s counsel and orde ring Raphael to pay counsel’s fees.

DISCUSSION

1

. The Role of Minor’s Counsel in Custody Disputes
Family Code section 3150, subdivision (a) provides that “ [i ]f the court
determines that it would be in the best interest of the minor child, the court may appoint
private counsel to represent the interests of the child in a custody or visitation6

proceeding , provided that the court and counsel comply with the requi rements set forth

in Rules 5.240, 5.241, and 5.242 of the California Rules of Court ” (“ CRC Rules”).

CRC Rule 5.240 sets forth specific factors the court should take into account in
determining whether to appoint minor’s counsel , including whether (1) the issue of
child custody is highly contested or protracted
, (2) minor’s counsel would be likely to
provide the court with relevant information not otherwise readily available
, ( 3 ) knowledgeable counsel is available for appointment
, and ( 4 ) the best interest of the
child appears to require independent representation. CRC Rule 5.241 addresses the

pr oper payment of minor’s counsel, and CRC Rule 5.242 addresses the qualifications,
rights and responsibilities of minor’s counsel.
Family Code section 3151, subdivi sion (a) provides that “[t]he child’ s counsel
appointed under this chapter is charged with the representation of the child’ s best

interests. The role of the child ’ s counsel is to gather evidence that bear s on the best
interests of the child, and present t hat admissible evidence to the co urt

. . . . The

counsel’ s duties

. . . include interviewing the child, reviewing the court files and all
accessible relevant records available to both parties, and making any further
investigations as the counsel considers necessary to ascertain evidence relevant to the
custody or visitation hearings.”

2

. The Court Did Not Violate Raphael’s Right to “ Advance” His Daughter’s Best Interests
Raphael contends that the order appointing minor’s counsel deprived h im of “his
right as a fit father to determine and advance M.’s best interests” because minor’s7

counsel was tasked with representing the child’s best interests. However, the court’s

order only appointed minor’s counsel for the purpose of providing the cour t with

additional information ; it did not preclude the p arties from also inform ing the court
what they believe M.’s best interests to be

. 3

Raphael also argues that the court “substituted its own judgment of M

. ’s best
interests for that of [Raphael]” when it ordered him to pay $100,000 to minor’s counsel
instead of allowing Raphael to use that money for other purposes. Raphael states that
he would prefer to use this money for M.’s college education pursuant to his
constitutional right to direct and provide for his child’s education. In support of this
argument, he cites to Meyer v. Nebraska (1923) 262 U.S. 390 and Pierce v. Society of

Sisters (1925) 268 U.S. 510, two cases holding that the application of statut es limiting

the kinds of education a child may receive unreasonably interfered with a parent ’ s right

to direct the education of his child

. The reasoning of those cases does not apply here.

T he payment of minor’s counsel’s fees in a custody dispute does n ot in any way restrict
the kind of education a child may receive or affect a parent’s right to direct that

education.

3 Raphael also argues that it was unconstitutional for the trial court “to give M. a voice” because , pursuant to Parham v. J. R. (1979) 442 U.S. 584, children may not “receive independent consideration ‘absent a finding of neglect or abuse.’ ” This citation does not support that proposition. The Parham court was addressing whether

a parent could voluntarily commit his child to a mental hospital and stated only that “[i]n defining the resp ective rights and prerogatives of the child and parent in the voluntary commitment setting, we conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse

. . . . ” ( Id . at p. 604 [emphasis added].)8

3

. Raphael’s R ight to Decide With Whom His Daughter Associates Does Not Trump the Court’s Authority to Act in M.’s Best Interests

Ra phael argues that the court’s order would force him to provide minor’s counsel
with access to his daughter and, therefore, violated his right to determine with whom his
daughter associates. It appears that he is raising an “as applied” challenge to Family

Code section 3151 which gives minor’s counsel the right to “[r]easonable access to the

child.” 4 (Family Code, § 3151, subd. (c)(1).) He argues that this statute infringe s on his constitutional right as a “fit parent” to determine with whom his daughter may

associate

. “ In determining a statute’s constitutionality, we start from the premise that it
is valid, we resolve all doubts in favor of its constitutionality, and we uphold it u nless it
is in clear and unquestionable conflict with the state or federa l Constitutions

. [Citation.]” ( Rupf v. Yan (2000) 85 Cal.App.4th 411, 423 .)

A parent’s right to control with whom his child associates stems from the
Fourteenth Amendment’s provision that no state shall “ ‘ deprive any person of life,
liberty, or property without due process of law. ’ ” ( Troxel v. Granville (2000)

530 U.S. 57, 65 ( Troxel ) .) The substantive com ponent of this due process clause

“ ‘provides heightened protection against government interference with certain
fundamental rights and libe rty interests,’ ” which includes the right of parents to make
decisions concerning the care, custody and control of their children. ( Id. at p. 65.) In

4 Raphael generally argues that he is raising an “as applied” challenge to all of the statutes “that authorize, and are incorporated into, the order ” appointing minor’s counsel

. The following statutes are referenced i n the form order appointing minor’s counsel : Family Code, §§ 3150, 3151, 3151.5, 3152; Government Code § 77002; and California Rules of Court, Rules 5.240, 5.241, and 5.242.9

addition, there is a “presumption that a fit parent s will act in the best interest of his or

her child. [Citation.]” ( Id. at p. 6 9 .) Encompassed within “a parent’s liberty interest in
the custody, care and nurture of a child is

. . . ‘ “the right to determine with whom the[]
child[] should associate. [Citation.]” ’ [Citation.]” ( Herbst v. Swan (2002)

102 Cal.App.4th 813, 819.)
However, this right is not unlimited. “California has recognized situations in
which the independent rights of children may provide the state with a need to interfere
with the parental liberty interest at issue

. . . . ” ( Herb st v. Swan , supra,

102 Cal.App.4th at p. 820.) For example
, “i t has long been recognized that a trial court
has the responsibility to protect the rights of a minor who is a litigant in court
[citations], and in this role the court has the inherent authority to make decisions in the

best interes ts of the child, even if the parent objects. [Citation.]” ( Williams v. Superior

Court (2007) 147 Cal.App.4th 36, 49.) “The principle of the best interests of the child

is the sine qua non of the family law process governing custody disputes.” ( Banning v.

Newdow (2004) 119 Cal.App.4th 438, 447.) “A lthough a parent’s interest in the care,
custody and companionship of a child is a liberty interest that may not be interfered
with in the absence of a compelling state interest, the welfare of a child is a compelling
state interest that a state has not only a right, but a d uty, to protect.” ( In re Marilyn H.
(1993) 5 Cal.4th 295, 307.)
Raphael relies on case law addressing the visitation rights of relatives, and
contends that “[i]f an association with a child’s own blood relatives cannot be forced on

a child against the parent’s wishes, certainly an association with a complete stranger10

cannot be forced on M.” (See Troxe l, supra, 530 U.S. at p. 65 ; Punsly v. Ho (2001)

87 Cal.App.4th 1099 ( Punsly ) overruled on other grounds by Conservatorship of
Whitley (2010) 50 Cal.4th 120 6 , 122 6 , fn. 4 .) However, this is not a case about

visitation but about counsel’s more limited right to meet with the child in order to gathe r

facts to determine the child’s best interests within the context of a custody dispute.
Raphael acknowledges that an infringement on his liberty interest may be
permissible if it passes the strict scrutiny test providing that the law is narrowly tailored
and justified by a compelling state interest. ( Punsly, supra, 87 Cal.App.4th at p. 1107 .)

Here, Family Code section 3151 , subdivision (c)(1 ) is justified by a compelling state
interest in protecting a child’s best interests in a custody dispute. When t he trial court
appoints minor’s counsel, such counsel cannot adequately represent the child’s interests
without meeting with the child in order to interview and observe her. Counsel’s “right
to reasonable access” to the child is thus necessary to the mino r’s legal representation.
Although there is a presumption that fit parents act in the best interests of their children,
preventing m inor’s counsel from meeting with M. would patently not be in M.’s best

interests as this would interfere with counsel’s ability to provide competent
representation for M. ( Troxel
, supra , 530 U.S. at p. 67.) Accordingly, Family Code

section 3151, as applied to the facts presented, did not unconstitutionally infringe on
Raphael’s due process rights as a fit parent to decide who may associate with his
daughter. 5

5 Raphael’s argument also hinges on whether minor’s counsel’s “access” to a child in connection with court proceedings constitutes an “association” with that child under11

4

. Raphael’s Right to Protect M.’s Medical Privacy
Raphael generally argues that the court violated M.’s right to privacy by “giving”
minor’s counsel the right to access minor’s medical rec ords and the right to assert or waive the minor’s right to privacy. This ri ght is accorded to minor’s counsel pursuant

to CRC Rule 5.242 , subdivision s (i)(6) and (11)

. 6 Raphael appears to be challeng ing

this statute’s constitutional validity as applied to M.’s circumstances , but does not
provide any specific analysis of the facts at hand.
An as applied challenge requires the appellant to make a factual analysis of the
individual case. ( Banning v. Newdow, supra, 119 Cal.App.4th 438 at p. 4 57 .) Here,
Raphael only makes the above broad argument, citing to case law for the general
proposition that minors have a right to privacy in their medical information. It is
unclear from this argument what about M.’s circumstances makes the application of

the Due Process Clause. A parent’s interest in controlling with whom a child associates has been recognized by the United States Supreme Court as arising from a parent’s interest in “cho[osing] [] a child’s social companions” in order to control “the influence of personal associations on the development of the child’s social and moral character.” (See, e.g., Troxel, supra, 530 U.S. at p. 78 [Souter, concurring opn.].) In accordance with this understanding, Raphael’s cited case law addresses a child’s interactions in social contexts, such as court

- ordered visitation between a child and relatives. ( Ibid. ; Punsly v. Ho, supra, 87 Cal.App.4th 1099 ; Herbst v. Swan, supra, 102 Cal.App.4th 813.) We cannot say that minor’s coun sel’s right to limited access to a child in connection with court proceedings makes the counsel a social associate such that her contact with the minor affects this constitutional right.

6 Rul e 5. 242, subdivision (i)(6) provides that minor’s counsel has the right to “[a]ccess the child’s medical, dental, mental health, and other health

- care records

. . . . ” Subdivision (i)(11) of this statute provides that minor’s counsel may “[a]ssert or wai ve any privilege on behalf of the child.”12

CRC Rule 5.242 to her unconstitutional. We, therefore, reject this claim as not properly
supported by adequate analysis. 7 ( People v. Bonin (1989) 47 Cal.3d 808, 857 , fn. 6 .)

5

. The Trial Court Did Not Abuse Its Discretion In Ap pointing Minor’s Counsel
Raphael contends that the court abused its discretion in appointing minor’s

counsel because none of the factors set forth by CRC Rule 5.240, subdivision (a)
applied . However, at least several factors favored the appointment of minor’s counsel

here . First, t he evidence showed that the issue of child custody was highly contested
and protracted: (1) the litigation ha s been pending for over four years , (2) the parties
contested not only the division of custody but also simple procedural matter s s uch as
setting a party’s deposition, and (3) the parties ha d adopted polar positions on what kind

of services and treatment their child need s , if any , which affect s the court’s custody

decision.

Second , due to Lopez’s prior experience as minor’s counsel in cases involving
children with special needs, it was likely she would provide a useful perspective to the
court with respect to the parents’ dispute over whether M. has special needs

. Third,
Lopez was available to work on this case as demonstrated by her acceptance of the
court’s appointment. Lastly, the court properly indicated that it believed M .’s best

interests would be served if she had an independent voice, presumably because the

7 Raphael has also not met his burden of showing that Rule 5.242 is facially unconstitutional. ( Rupf v. Yan, supra, 85 Cal.App.4th at pp. 423

- 424 [it is appellant’s burden to demonstrate that a statute’s provisio ns “ ‘ inevitably pose a present total and fatal conflict with applicable constitutional prohibitions

. . . . [I]f the court can conceive of a situation in which the statute can be applied without entailing an inevitable collision with constitutional provi sions, the stat ute will prevail. [Citation.]’ ”])13

parties’ percep tion s of M. and her needs were so different that minor’s counsel was

needed to provide an unbiased perspective to aid the court in its decision. Therefore,
the trial court did not abuse its discretion in appointing L opez as minor’s counsel for M.

6

. Requiring Raphael to Advance $100,000 to Minor’s Counsel Was Not An Abuse of Discretion
Raphael contends that the order requiring him to advance $100,000 to minor’s

counsel was an abuse of discretion because the completion of trial was scheduled for

O ctober 25, 2013 , and Lopez could not have billed up to $100,000 during the time
between her appointment and the end of trial . However, Raphael also acknowledges
that counsel’s appointment would last until “the child reaches the age of majority or is

emanc ipated” unless she were “relieved” or “removed” at an earlier time by the court.
( CRC Rule 5.240, subdivision (f).) Accordingly, the relevant time frame extended
beyond the end of trial.14 DISPOSITION

The order is affirmed. The Petition for Writ of Mandate is dismissed as moot.
Respondent Tammy Metzger shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

WE CONCUR:

KLEIN, P. J.

ALDRICH, J.