Contra Costa Lawyer - March 2019 Children's Rights

Contra Costa

Lawyer Volume 32, Number 2 | March 2019

CHILDREN’S RIGHTS Children Confounding the Courts: An Immigration Conundrum Minor’s Counsel - Protecting Children’s Rights in Family and Probate Courts CASA: Speaking Up for Youth

Get a second opinion on your financial health.

Schedule a complimentary, face-to-face meeting with a Financial Advisor.

Investors have survived market swings and corrections before. But a twinge of uncertainty may have you wondering if you should get another opinion to help confirm your wealth is in the right place. That’s why we’ve made it as easy as we can to have a complimentary, face-to-face meeting with a Financial Advisor.

Maybe you just want to know if you’re really on track for retirement or if your investments could be better aligned to your goals. Or in the process of working hard for your money, you worry you’ve overlooked some necessary steps to transfer your wealth.

Whatever’s on your mind, we’re here to listen, and we’ll help you evaluate your plan. It’s free, and there’s no obligation. Then you can decide if your wealth is getting the care it deserves.

WEALTH MANAGEMENT | INVESTMENT PLANNING | RETIREMENT

The Novak Wealth Management Group of Wells Fargo Advisors Perry A. Novak Senior Vice President - Investment Officer

Investment and Insurance Products: u NOT FDIC Insured u NO Bank Guarantee u MAY Lose Value Wells Fargo Advisors is a trade name used by Wells Fargo Clearing Services, LLC, Member SIPC, a registered broker-dealer and non-bank affiliate of Wells Fargo & Company. © 2015 Wells Fargo Clearing Services, LLC. All rights reserved.

97772-v1a A1951

2033 N Main St Ste 600 Walnut Creek, CA 94596 Direct: (925) 746-7278 Perry.Novak@wellsfargoadvisors.com home.wellsfargoadvisors.com/perry.novak CA Insurance # 0A79397

0317-00193

2

MARCH 2019

Contra Costa 2019 BOARD of DIRECTORS James Wu President Oliver Greenwood President-Elect Nicole Mills Secretary Mika Domingo Treasurer Nick Casper Past President Gina Boer David Erb David Marchiano Ericka McKenna Cary McReynolds Craig Nevin

David Pearson Dorian Peters Michael Pierson Summer Selleck Qiana Washington Rachael Zeiph

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

Membership Director Education & Events Director

Emily Day

Fee Arbitration Program Director & Systems Administrator

Contra Costa Lawyer CO-EDITORS EDITORIAL BOARD Inga Miller David Arietta 925.402.2192 925.472.8000

Samantha Sepehr Ann Battin

925.287.3540 510.234-2808

BOARD LIAISON Marcus Brown Nicole Mills 925.482.8950 925.351.3171 Jaime Kissinger BOARD LIAISON (925) 930-6000 Dorian Peters Perry Novak COURT LIAISON 925.746.7278 Kate Bieker Lorraine Walsh 925.957.5600 925-932-7014

DESIGN Christina Weed Carole Lucido 925.953.2920 925.370.2542

ADVERTISING R.W. Walker Co. 213.896.9210

PRINTING Modern Litho

Lawyer Volume 32, Number 2 | March 2019

B A R A S S O C I A T I O N

features

Children Confounding the Courts; An Immigration Conundrum, by Erika Portillo. . . . . . . . . . . . . . . . 8 Minor’s Counsel – Protecting Children’s Rights in Family and Probate Courts, by Barbara Suskind and James Paulsen. . . . . . . . . . . . . . . 11 The Child as a Witness in Dissolution Proceedings,

by Suzanne Boucher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A Safe Place to Talk - New Law Requires Support Services for Transgender Youth in Foster Care, by Johanna Kwasniewski. . . . 16 CASA: Speaking Up for Youth, by Robin Pearson. . . . . . . . . . . . . 18 Every Child’s Right to a Free Appropriate Public Education: The Basics, by Stuart Gilliam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Columns

Inside: Children’s Rights – A Riddle Wrapped in a Mystery Inside an Enigma, by Robin Pearson . . . . . . . . . . . . . . . . . . . . . . . . 5 President’s Message: Interview with Our Newest Judge, Hon. Linda Lye, by James Wu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Bar Soap, by Matthew Guichard. . . . . . . . . . . . . . . . . . . . . . . . . . 26 Last Month, The New Rules of Professional Conduct . . . . . . . . . 34

DEPARTMENTS 20-21 PHOTOS: Installation Lunch & Diversity Awards 28

IN MEMORIAM: Call me “Coley”: Reminiscing About Judge Coleman Fannin, by Hon. Mark Simons

30

IN MEMORIAM: My Best Friend, Bill O’Malley, by Hon. Rick Flier (Ret.)

32

WELCOME New Members

800.456.5867

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year – six times online-only – by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@ cccba.org.

The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

The official publication of the

32 SUSTAINING FIRMS 33 THANK YOU: To Guest Editors Robin Pearson and Barbara Suskind 34 Classifieds 34

INDEX OF ADVERTISERS

35-37 Calendar 38-39 PHOTOS: Lunar New Year

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

3

LAWPAY IS FIVE STAR! LawPay has been an essential partner in our firm’s growth over the past few years. I have reviewed several other merchant processors and no one comes close to the ease of use, quality customer receipts, outstanding customer service and competitive pricing like LawPay has.

— Law Office of Robert David Malove Trusted by more than 35,000 firms and verified ‘5-Star’ rating on

Invoice Payment Payment Detail Thank you for your prompt payment.

Amount $ 1,200.00 Invoice Number 123-a Matter Number 01832

THE #1 PAYMENT SOLUTION FOR LAW FIRMS

Card Information Card Number

CVV

**** **** **** 5555

Getting paid should be the easiest part of your job, and

111

PAY LAWYER

with LawPay, it is! However you run your firm, LawPay's flexible, easy-to-use system can work for you. Designed specifically for the legal industry, your earned/unearned fees are properly separated and your IOLTA is always protected against third-party debiting. Give your firm,

Now accept check payments online at 0% and only $2 per transaction!

and your clients, the benefit of easy online payments with LawPay.

866-500-2832 or visit lawpay.com/cccba LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Citizens Bank, N.A., Providence, RI.

Proud Member Benefit Provider

INSIDE

Children’s Rights

–A Riddle Wrapped in a Mystery Inside an Enigma

by Robin Pearson, Co-Guest Editor Welcome to the Children’s Rights Issue of the Contra Costa Lawyer.

Serving as the co-editor of this issue with Barbara Suskind has been a very special experience for me. In our ever changing world children’s rights are constantly evolving. With growing immigration issues, divorce on the rise, LBGTQ rights taking center stage and a foster care system in desperate need of repair, the issues that children face today are greater than I could have ever imagined when I was a child.

As a real estate and business litigation attorney I was not sure where or how to begin putting this issue together. Even though I serve on the board of directors of CASA in Contra Costa Contra County through which I have developed some familiarity with the foster care system and advocating on behalf of minors, serving as the guest editor for this issue was still a daunting task. So I did two things that brought everything into focus. First, I requested assistance from a mediator/attorney with knowledge in the area to co-edit this issue of the Contra Costa Lawyer magazine with me, Barbara Suskind (a great move on my part).

Then I asked myself a basic question: Exactly what are children’s rights?

Then I looked up the definition.

Wikipedia defines them as human rights of children that include the right to associate with both parents, human identity, physical protection, food, universal state-paid education,

health care, criminal laws appropriate for the age and development of children, equal protection of children’s civil rights, and freedom from discrimination on the basis of race, gender, sexual orientation, gender identity, national origin, religion, disability, color, ethnicity, the rights to care and nurturing and the right to be free from physical, mental and emotional abuse. Children’s Rights law is defined as the point where the law intersects with a child’s life.

That’s a lot of territory to cover, so where to begin? There were a dizzying number of topics to write about and while it was difficult to narrow the scope of what we wanted to include in this edition of the magazine, I believe we have touched upon relevant and very interesting topics that we hear about and discuss on a daily basis.

First, Stuart Gilliam writes about every child’s right to a free appropriate education. Next, Judge Terri Mockler and Judge John Sugiyama are interviewed by James Paulsen and discuss Minor’s Counsel protecting children’s rights in family and probate courts. Suzanne Boucher brings up an issue that has affected too many children in our society – the child as a witness in a marital dissolution proceeding. Johanna Kwasniewski advises us about a new law that requires support services for transgender youth in foster care and Erika Portillo writes about an immigrant conundrum, the separa-

tion of children from their parents – a subject that is consistently in the news. Finally, I interviewed Ann Wrixon, the Executive Director of CASA and discussed some of the foster care issues that CASA attempts to address in Contra Costa County.

This issue also includes CCCBA President James Wu’s interview with recently-appointed Judge Linda Lye and heartfelt tributes to two legal lions – the Honorable Coleman Fannin, by Justice Mark Simons and Bill O’Malley by the Honorable Rick Flier (Ret). Most people hope to make a small contribution to society during their lifetime. Judge Fannin and Bill O’Malley did that and so much more. Our legal community is a better place due to their dedication, service and the legal legacy that they have left behind through their family and friends.

Barbara and I hope you enjoy this edition of the Contra Costa Lawyer magazine and that you learn something new.

Robin Pearson is a founder and owner of Pearson & Schachter. She is an experienced trial lawyer and served as President of CCCBA in 2008. Ms. Pearson chaired the CCCBA Diversity Committee from 2002 – 2017 and is a member of the board of CASA. She is also a past president of Black Women Lawyers of Northern California and a past chair of the State Bar Council on Access and Fairness.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

5

from the

President

by James Wu, CCCBA President

Interview with Our Newest Judge, Hon. Linda Lye Before leaving office, Governor Jerry Brown appointed several new California Superior Court Judges at the end of 2018. The Contra Costa County Bar Association thanks each one for their service to the profession prior to becoming a judge, and appreciates their commitment to justice by becoming dedicated judges. On October 26, 2018, Judge Linda Lye was appointed to the California Superior Court, County of Contra Costa. Judge Lye was officially sworn in by then-Presiding Judge Jill Fannin and took the bench on November 26, 2018. Judge Lye is now hearing cases in Department 29 at the Richmond Courthouse. I had the opportunity to get to know Judge Lye and share some of her background and insights in this month’s President’s Message.

Wu: Thank you, Judge Lye, for letting all of us get to know more about you. First, tell us about why you became an attorney.

Hon. Linda Lye: I had worked in the California State Legislature before going to law school and realized that the political branches were not for me. I perceived votes on legislation to be more popularity contests – who were the sponsors of the bill – than contests of ideas. I wanted to work in an arena that was about the strength of your argument, not the strength of your PAC. I’ve always been a bit 6

MARCH 2019

of an egghead. I love engaging with legal ideas and arguments, working through thorny legal issues until you can find an elegant solution.

Wu: Why did you want to become a Judge?

Hon. Linda Lye: I was a public interest lawyer for almost 20 years before I became a judge, first at a plaintiff-side labor and employment law firm and then at the ACLU. I went into public interest law because I believed, and still believe, that the role of the courts in our society is to serve as a forum where all litigants can get a fair hearing, no matter what they look like or where they come from. Becoming a judge has been a tremendous honor and privilege and has allowed me to weave together the two dominant threads of my legal career – my love of legal ideas, and my abiding belief that the role of the courts is to dispense justice.

Wu: What were some challenges you faced as a female and/or Asian American attorney?

Hon. Linda Lye: The common stereotype of Asian Americans, especially Asian American women, is that they are meek or subservient. Especially as a new lawyer, I ran into opposing counsel who would be even more bullying than the run-of-the-mill irritating opposing counsel. I think

they assumed I would just cave. But you learn to hold your ground and let it roll off of you. That old adage is very apt: Whatever women do, they must do twice as well as men to be thought of half as good. For Asian American women, it might be four times as well.

There are also a lot of stereotypes about Asian Americans lacking leadership skills. Fortunately, I worked at a firm that was very supportive and committed to making me partner. I’m incredibly grateful to have “grown up” as a lawyer in that environment.

Wu: Justice Ruth Bader Ginsburg has been in the spotlight lately.

Please share any insight/information regarding your experiences as a law clerk for Justice Ginsburg.

Hon. Linda Lye: I certainly won the legal equivalent of the lottery when she picked me to be a law clerk. I clerked for her during the 2000 October Term--so before, as my co-clerks and I joke, she was famous.

It’s funny to think of her as such an icon. Although she was obviously a major figure even then, she’s personally very shy and unassuming.

She’s inspiring in so many ways. I couldn’t do justice to them all in a short interview. But certainly one thing that sticks out is that Justice Ginsburg has always had the long view. She had the long view when it came to her vision of gender equality—crafting a masterful legal strategy by first bringing cases that challenged discrimination against men. And her reaction to politicized cases during the term in which I clerked was no different. She might be in the dissent in various highstakes cases, but she has a long-term

vision and holds true to her ideals with more tenacity and persistence than seems humanly possible.

Perhaps relatedly, she’s also remarkably patient. She was incredibly generous in the way she sat down with her clerks and schooled us in the craft of legal writing. I still draw on those lessons today.

Wu: Thank you, Judge Lye, for being so candid and open! We are lucky to

have you on our County bench.

For over 22 years, James Wu has practiced employment law. He is a defense litigator for employers, and he also provides advice and counsel to reduce the risks of employment-related claims and lawsuits. James is serving his 2nd year as CCCBA President. See more at www.linkedin.com/in/jamesywu.

Mediator Business Litigation & dissoLutions reaL estate & ConstruCtion defeCt aCtions PersonaL injury / tort aCtions ProfessionaL LiaBiLity eMPLoyMent z insuranCe 505 Montgomery St., 11th Floor | San Francisco, CA 94111 www.windsor-plc.com | Tel: 415.874.3800 Mediation and sPeCiaL Master serviCes in CaLifornia & Hawaii

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

7

FEATURE

Children Confounding the Courts

An Immigration Conundrum

by Erika Portillo

Separation of families at the border has been a big part of the news of late. According to the Department of Homeland Security, last Spring 2,342 children had been separated from their parents after crossing the Southern U.S. border. However, according to a report issued on January 17, 2019 by the inspector general for the Department of Health and Human Services, it was revealed that the administration separated thousands more migrant children from their parents at the U.S. border than has previously been made public. The report estimates that thousands of other youngsters were separated months before the government announced it would separate children in order to criminally prosecute their parents, through late last Spring. Previous administrations also separated minors from adults at the border in some instances, usually when it was suspected the child was smuggled, or the parent appeared to be unfit. The report documents a sharp increase in separations under the current administration.

8

MARCH 2019

Once separated from their parents, significant challenges face the U.S. government trying to re-unite them.

Many parents had been deported or were not given any information about where their children would go, according to the Texas Civil Rights Project’s conversations with detained adults. As a result, children were in custody for more than 20 days in violation of the 1997 Flores Settlement Agreement.1 The Flores Settlement Agreement arose out of Flores v. Reno, a 1987 California case that went all the way to the United States Supreme Court. The parties reached a settlement ten years after the case initially arose. The Settlement outlined standards for detention and release of unaccompanied minors taken into immigration custody. It imposes several obligations on the immigration authorities, which fall into three broad categories: • The government is required to release children from immigra-

tion detention without unnecessary delay in order of preference beginning with parents and including other adult relatives as well as licensed programs willing to accept custody, within three to five days of apprehension. Under extenuating circumstances where the government faces an “emergency” or “influx” of minors, a de minimis extension of the transfer period of up to 20 days may be allowed. But the government must act in good faith and with due diligence to screen the family release.

• With respect to children for whom a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.

• The government is required to implement standards relating to the care and treatment of children in immigration detention.

In September 2018, the current administration proposed regulations that seek to terminate the Flores Settlement Agreement’s legal safeguards for children, including the provision that children must be transferred to a non-secure, licensed facility within three to five days of apprehension.2 The proposed regulations include a number of policies which, if implemented, would allow the government to incarcerate more families for even longer periods of time. Many organizations and agencies oppose the proposed rule as it will eliminate any time limitation on incarceration by eliminating the requirement that family detention centers be licensed by an appropriate state agency. Instead it would allow DHS to self-license its own facilities, eliminating certain child safety and welfare standards for family detention centers; and further limit release options for children incarcerated in family detention who have not yet passed a credible fear interview. The agencies will decide whether to proceed with the final rule after reviewing the comments submitted.

litigation attempting to force the government to provide counsel for children appearing in Immigration Court has not yet been decided.

Meanwhile, many non-profits, such as Legal Services for Children are struggling to take as many cases as they can to defend children in immigration proceedings.

The majority of those children fled their home countries after experiencing violence or threats of violence. The lack of counsel diminishes their chance to win their asylum claims and increases the chance they will be returned to the country in which they faced the danger.

Another issue children face after release from immigration custody is the lack of legal representation in immigration court. There is no Sixth Amendment right to counsel in immigration proceedings. Congress has recognized instead that the right is among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals who are the subject of removal proceedings. As a result, it has been determined that immigrants have the right to be represented by counsel at their own expense under the Fifth Amendment.

Section 292 of the Immigration and Nationality Act generally governs an alien’s right to counsel. Many children have appeared at court without counsel as they are unable to find representation. Judges are going forward with the hearings regardless of the children’s lack of competency to stand trial. Pending

1. The Flores settlement can be found at: https://www.aclu.org/sites/default/files/ assets/flores_settlement_final_plus_ extension_of_settlement011797.pdf

The current immigration climate has brought into the open the many deficiencies of the immigration process, highlighting the urgent need for reform of the entire process and most particularly how we deal with the vulnerable children.

Erika Portillo is a partner at Guichard, Teng, Portillo & Garrett, with offices in Walnut Creek and San Francisco. She practices immigration law exclusively and is fluent in English and Spanish.

Specializing in Valuations for: • Estate & Gift • Slides & Construction Defects • Diminution in Market Value • Eminent Domain • Conservation Easements • Land Trusts • Family Law • Appraisal Review

Bruce Hahn, MAI, SRA, ASA Real Estate Appraisal 3093 Citrus Cir., Suite 160, Walnut Creek, CA

(925) 932-4044 www.landmarkvaluation.com 2. The proposed regulations can be found at: https://www.federalregister.gov/ documents/2018/09/07/2018-19052/ apprehension-processing-careand-custody-of-alien-minors-andunaccompanied-alien-children

Photo reprinted with permission from Linda Freedman and Non-Profit Immigration Advocates.

Visit the website and support their work! www.ics-law.org

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

n

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 30 years

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

9

“First Republic truly understands the mission of nonprofits. Their support of our growth has meant a great deal to us.”

GEORGE MARK CHILDREN’S HOUSE

Kathy Hull, Psy.D., Founder and Board President; Bill Gisvold, Board Member

(855) 886-4824 | firstrepublic.com | New York Stock Exchange symbol: FRC MEMBER FDIC AND EQUAL HOUSING LENDER

10

MARCH 2019

FEATURE

Minor’s Counsel –

Protecting Children’s Rights in Family and Probate Courts

by Barbara Suskind and James Paulsen

An Interiew with Judge Terri Mockler and Judge John Sugiyama

As this issue of The Contra Costa Lawyer is devoted to “children’s rights,” it seems appropriate to explore what their rights are when family members can’t agree on who gets to make decisions about the child’s health, education, and welfare; where the child will live; with whom the child will live; how much time the child will spend with other members of the family.

These are the issues addressed by the Family Law and Probate judges every day. The Family Law court is where these disputes between the parents get resolved; Probate court is where guardianship cases are heard; grandparents and other “interested parties” seeking guardianship alleging that they are the best candidate to raise child due to the parent(s) untimely death, substance abuse, or other destabilizing factors. Parents and other “interested parties” may dispute the petitioner’s request; either denying the allegations or opposing the proposed guardian.

child needs frequent and continuing contact with both parents and that both parents are adequate custodians. The probate court only gets involved when there is an allegation that the child needs an appointed guardian because of the absence or inadequacy of the parent or parents.

And, importantly, the minimum education and experience requirements of counsel to qualify to serve as minor’s counsel are set forth in CA ROC 5.240 & 2.542 pursuant to Fam. Code Sect. 3150 and CA ROC 7.1101 (b) 1, (f-h) pursuant to Probate Code Sect. 1470 & 1471.

When these disputes get messy, the courts are authorized to appoint minor’s counsel to represent the child’s best interests before the court.

While both courts are charged with making decisions in the child(ren)’s best interests, each of these courts have somewhat different perspectives in approaching the custodial issues before them. The family court starts with a presumption that every

What are some of the common concerns or fact patterns that prompt you to appoint minors counsel?

Therefore, at my request, Jim Paulsen, Director of Family & Probate Services, interviewed a Family Law Judge, Terri Mockler, and the Probate Judge, John Sugiyama, regarding the rights of children in their respective courts and the role of minors’ counsel.

What follows is a summary of Mr. Paulsen’s interviews with Judges Mockler and Sugiyama.

Judge Mockler: a. Two parents who are significantly distressed, have few resources and are saying very different or divergent things about their children.

b. Both parents are typically coping with external (little money, little family support, unstable housing, etc.) and internal (substance abuse, mental health, immaturity/lack co-parenting skills) challenges. c. It has been my experience that cases involving even one attorney rarely need minors counsel, because the attorneys here in Contra Costa are helping their clients attend to the needs of the children even when there are significant disputes about custody/visitation. Attorney involved cases also typically mean there are resources to secure therapy for the children and other services to help mitigate the trauma of divorce and parental conflict.

Judge Sugiyama: It is my practice to appoint minors counsel: a. If the petition or information uncovered during investigation process prompts a referral to Children and Family Services; b. If there are any questions or concerns raised about a petitioner’s criminal history or child welfare history compromising the petitioner’s ability to function as a safe and nurturing guardian; c. If either parent is contesting the guardianship; d. If any significant dispute arises between the interested parties about access to the children (e.g. visitation) during the preceding or post-guardianship;

Continued on page 12

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

11

Minor’s Counsel, Continued

perspective and/or becoming enmeshed.

e. If there are competing petitions; f. If the parent of the child(ren) is a minor, I appoint a GAL for that parent; g. If termination of parental rights is contested, a minor’s counsel is appointed for the child(ren).

Judge Sugiyama a. An ability to not only consider and address the child’s immediate needs but also consider and plan for the child’s needs into adulthood; b. An ability to work cooperatively with all parties and extended family members; c. Recommendations and context are always appreciated when sharing information about a child, but minors counsel must also be able to accept and even incorporate a judicial officer’s differing assessment or plans into their continued representation of a child. The judge is not always going to agree.

What do you consider when appointing a free court-paid minors counsel as opposed to privately paid counsel?

Judge Mockler: Typically the parents have very low or no income.

Again, those cases with attorneys typically do not need minors counsel. The family law judges can only appoint 4 court-paid minors counsel per year. Any additional appointment requests must be escalated to the supervising judge.

I cannot stress enough how valuable minors counsel services are. I would appoint more if there was available funding.

Judge Sugiyama: It is my practice to appoint minors counsel through the court-paid program.

What are two or three most appreciated attributes of effective minors’ counsel?

Judge Mockler a. Personally meet their clients to establish a rapport and develop the attorney-child client relationship. b. Helping the court to understand the child’s current developmental, health, emotional, educational etc. needs while also advocating for their client’s rights and legal needs. Descriptions of the child and or current circumstances without any context are much less helpful to the court. c. An investment in the client’s needs while also always remembering the needs of the judicial officer. d. Remaining engaged and attentive without losing a broader 12

MARCH 2019

Are children parties to the action in your court?

Judge Mockler: No. Judge Sugiyama: Though generally not a litigant, Probate Code 48 designates children as interested persons.

What rights to do children have in your court?

Judge Mockler a. The right to have the court make decisions in their best interest. b. The right to voice preferences, but only as prescribed by statute. c. Children are never to be compelled, coerced or bribed into voicing a preference about custody/ visitation.

Judge Sugiyama a. PC 1511 – minors over 12 must be served with all documents required to be served on adults. b. PC 1513(a)(3) – “…and a statement of the proposed ward’s attitude concerning the proposed guardianship, unless the statement of the attitude is affected by the proposed ward’s developmental, physical, or emotional condition.”

c. PC 1514(e)(1) – “The court is to be guided by what appears to be in the best interest of the proposed ward, taking into account the proposed guardian’s ability to manage and to preserve the estate as well as the proposed guardian’s concern for and interest in the welfare of the proposed ward. (2) If the proposed ward is of sufficient age to form an intelligent preference as to the person to be appointed as guardian, the court shall give consideration to that preference in determining the person to be so appointed.” d. PC 1510(a) – “A relative or other person on behalf of the minor, or the minor if 12 years of age or older, may file a petition for the appointment of a guardian of the minor.”

What rights of children are you concerned about protecting?

Judge Mockler: a. The right to be a child • Not to be triangulated into parental/family disputes.

• Not to be manipulated, exploited, ignored by adults responsible for raising, educating and supporting them.

• Not to be asked to decide how they are to be parented or raised. b. The right not to be abused or neglected (including emotional abuse and neglect) c. The right to be physically and emotionally safe d. The right to an adequate education e. The right to adequate healthcare f. The right to have their psychological, developmental and special needs adequately addressed and/or treated Judge Sugiyama a. The right to stability. b. The right to have not only current needs addressed and attended to but also to have a stable and safe home environment and

stable primary caregivers for the duration of childhood.

The importance of minor’s counsel in these disputes cannot be over emphasized. The courts are charged with making decisions that will have a lifetime impact on these children’s lives. Minor’s counsel is often the only way that courts can receive evidence about the child and his/her family from that an attorney charged solely with presenting evidence purely focusing on the child’s needs, not the needs/ desires of the competing adults. While it is true that minor’s counsel is required to

have specific education and significant experience beyond the norm in order to be appointed to represent a child for a fee that is a fraction of what s/he can charge as a general family or probate attorney, the non-financial rewards are beyond measure.

serving as private judge, referee and Special Master in difficult Family Law cases, mediating juvenile dependency cases, and is President of the Congress of Neutrals.

Jim

Barbara Suskind retired from litigation about 10 years ago, having practiced Family Law, Juvenile Dependency and Probate Guardianships for 25 years.

She is currently maintaining a private mediation practice as well as

Paulsen, LCSW, assumed the role of Director of Family and Probate after almost ten years as the Administrator of Family and Probate Court Services.

IF THE GAME WERE CHESS, WE’D BE

FIVE MOVES AHEAD Brillant Law can help you with probate, estate planning, trust and real estate litigation, as well as business and real estate law.

CALL TODAY AT 925.274.1400 | BRILLANTLAW.COM

Probate Estate Pla n ni ng Tr ust Lit igat ion Rea l Estate Lit igat ion Civ i l Lit igat ion Busi ness L aw Rea l Estate L aw CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

13

FEATURE

The Child as a Witness

in Dissolution Proceedings

by Suzanne Boucher

Clients often ask whether their child will have to choose which parent he or she wants to live with after the divorce. As with most legal questions, the answer is—It depends.

While a child is not required to express to the court his or her preference or to provide any input regarding custody or visitation, there is also nothing in the Family Code that prohibits a child from expressing an option regarding custody or visitation.

© Can Stock Photo / SungHeeKang

14

MARCH 2019

It is rarely in a child’s best interests to testify as a witness in a dissolution for the purpose of giving evidence against a parent or stating a preference when it comes to custody and visitation. The damage done to the child’s relationship with one or both parents, as well to the child’s psyche, is undeniable and should be avoided whenever possible. In order to limit the potential damage to the children, Fam. Code §3042 in conjunction with California Rules of Court 5.250, provides a framework for the court to obtain information regarding the child’s preferences in custody proceedings without requiring them to testify in court.

For example, the court may appoint minor’s counsel, a custody evaluator, an investigator, or a mediator to interview the child and provide recommendations to the court. See Family Code Section 3402(f) and In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28. If during these interviews the child tells the expert that they want to address the court in the pending action, the expert must inform the court that the child would like to address the court. This is an important distinction since a party or party’s attorney may, but is not required to, notify the court

of the child’s desire to address the court. (CRC 5.250(a) (1) and (2)) In the absence of information indicating a child wishes to address the court, the judicial officer may inquire whether the child wishes to do so. (CRC 5.250(a) (3)) Once the court is made aware of the child’s desire to be heard, the court must find a balance between 1) protecting the child, 2) the statutory duty to consider the wishes and input from the child and 3) the probative value of the child’s input while ensuring all parties’ due process rights to challenge evidence relied upon by the court in making custody decisions. (See CRC 5.250) Before the court allows the child to testify or address the court, it must first determine whether it is in the child’s best interest to do so. If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record. A child who is less than 14 years of age is not prevented from addressing the court, so long as the court determines doing so is in the child’s best interests. In making this determination, the court must consider the following: (a) Whether the child is of sufficient age and capacity to reason or form an intelligent preference as to custody or visitation (parenting time); (b) Whether the child is of sufficient age and capacity to understand the nature of testimony; (c) Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied

the opportunity to address the court or that the child may benefit from addressing the court; (d) Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision-making process; and (e) Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so.

If the court determines that calling the child as a witness is not in the child’s best interest, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences, including recommending mediation, evaluations, and appointing minor’s counsel, all of which allow the child to state his/her preference regarding custody, visitation and relocation cases. The information obtained from the child shall be filed in a confidential portion of the family law file.

If the court determines that the child should be allowed to testify, the court must then determine whether the court room will be public or private, who can be present when the testimony is taken, how the child will be questioned (i.e., will the judge ask the questions submitted by the parties or will the attorneys be allowed to ask the child questions) and whether a court reporter will be present to record the testimony. The court must also take steps to protect the child from harassment or embarrassment and ensure the questions are appropriate for the child’s age and cognitive level.

Although the court is required to consider and give due weight to the wishes of the child, those wishes are not conclusive on the issue of the child’s best interests. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135, 256 Cal.Rptr. 884.) To the extent the court decides consideration should be given to prefer-

ences of children as to custody, such preferences are entitled to greater consideration in a modification proceeding, as here, than would be appropriate in an initial custody determination. In the latter circumstance there will usually be considerable uncertainty as to how a future arrangement will work out, while in the former the child has lived with the arrangement and can have a more informed basis for his or her preference. (See In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, 224 Cal.Rptr. 250, disapproved In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473.) Both Rosson and Burgess are move-away cases where the preferences of the child are one of the factors to be considered in determining custody and visitation when one parent decides to move out of the area. In these cases, as with most custody and

Elder Law is

visitation cases, the parents usually agree that it is not in the child’s best interest to testify or address the court and the children’s preferences are determined through recommending mediation or custody evaluation. For the other cases, we must rely upon the court to act in the best interest of the child when making decisions about whether to allow a child to testify in dissolution proceedings.

Suzanne N. Boucher, Esq. is a Certified Family Law Specialist in Walnut Creek with over 27 years of experience handling family law matters. Suzanne was co-editor of the Contra Costa Lawyer magazine from 2017-2018 and served on the Editorial Board from 2014-2018. She is a past president of the Women’s Section and the Robert G. McGrath American Inn of Court.

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

Protect your loved ones, home and independence, call elder law attorney

LAW OFFICES OF MICHAEL J. YOUNG, INC.,

Alzheimer’s Planning

a Professional Law Corporation Estate Planning, Asset Protection, Medi-Cal, Long-term Care & VA Planning

925.256.0298 lawyoung1@gmail.com www.WalnutCreekElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

15

FEATURE

A Safe Place to Talk -

New Law Requires Support Services for Transgender Youth in Foster Care

by Johanna Kwasniewski

On September 14, 2018, Governor Jerry Brown signed Assembly Bill 2119 amending Welfare and Institutions Code sections 16010.0 and 16010.2 to provide gender affirming health care and mental health care to foster youth.

Gender identity, as defined by the American Psychological Association (APA), is a person’s deeply-felt, inherent sense of being a boy, a man, or male; a girl, a woman, or female; or an alternative gender, that may or may not correspond to a person’s sex assigned at birth. Since gender identity is internal, a person’s gender identity is not necessarily visible to others.

The APA defines the term transgender as an umbrella term to describe the full range of people whose gender identity or gender role do not conform to what is typically associated with their sex assigned at birth.

The vast majority of children and young adults in foster care receive medical and mental health services through Medi-Cal. Historically, there has been no legal requirement for Medi-Cal services to support foster youth who identify as transgender with any medical or mental health services.

In 2001, all the rights of foster youth 16

MARCH 2019

were consolidated into one statute, commonly referred to as the “Foster Youth Bill of Rights.” Generally, foster youth must receive all necessary medical, dental, vision, and mental health services. In 2015, the Foster Youth Bill of Rights was amended to include the right for foster youth to be placed in out-ofhome care according to their gender identity, regardless of the gender or sex listed in their court or child welfare records.

AB 2119 fills a gap in current law by specifically addressing services to foster youth related to gender identity. The new law requires a county child welfare agency to ensure that all children and young adults in foster care have access to gender affirming health care and gender affirming behavioral health services. A request for gender affirming health care or behavioral health services may be made by a nonminor dependent, a caregiver, an attorney for the minor, a Court Appointed Special Advocate (CASA), or a social worker.

“Gender affirming health care” is defined as health care that respects the gender identity of the foster youth, as experienced and defined by each person. This includes interventions to suppress the development of secondary sex characteristics with the onset of puberty, to

align the minor’s physical body with the minor’s gender identity, and to alleviate mental and physical distress resulting from transitioning genders.

Gender affirming behavioral health services should be provided that respect the gender identity of the minor, including developmentally appropriate exploration and integration of identity, reduction of stress, coping skills, and strategies to increase family acceptance.

AB 2119 also prohibits a licensed professional, or any other individual, from subjecting a foster child or nonminor dependent to any treatment, intervention, or conduct that seeks to change a foster youth’s chosen gender identity.

Opposition to AB 2119 included Equipped to Love, Bethel Church, William Jessup University, American College of Pediatricians, and 936 individuals. William Jessup University issued a written opposition stating that in its opinion, AB 2119 prevents foster youth from engaging in services “to change their same sex desire or gender identity to their biological gender.”

Dr. Michael Laidlaw, an endocrinologist for Sutter Health, testified at California Senate proceedings in opposition to AB 2119. Laidlaw

testified that children undergoing gender-transition treatment “don’t have the capacity at that young of an age to understand what’s going to happen to them.”

In his opinion, AB 2119 “misses the mark… because doctors and psychologists have absolutely no way of diagnosing with certainty who is a true trans child and who has gender dysphoria (or confusion with underlying mental health and endocrine problems).” Further, the American Psychological Association indicates many children that experience gender dysphoria do not continue it into adulthood.

Studies show there is a higher percentage of lesbian, gay, bisexual, transgender, and queer (LGBTQ) youth in foster care than in the overall youth population. Approximately, 5.6 percent of youth ages 12 through 21 in out-of-home care identify as transgender. This estimate is higher than the 1.3 to 3.2 percent of the overall youth population in the U.S. believed to identify as transgender.1

At the very least, AB 2119 provides a starting point for dialogue between foster youth and the network supporting them – attorneys, CASAs, social workers, and caregivers – to provide them with services to discuss their needs, explore their gender identity, and develop self-acceptance with the aid of medical and mental health services. The overarching goal is for all youth in foster care to experience less trauma and achieve better overall outcomes.

The California Department of Social Services has until January 1, 2020 to adopt regulations to implement the specific provisions of AB 2119. Minor’s Counsel, CASAs, social workers, and caregivers should be aware of their duty to request services on behalf of foster youth who are questioning their gender identity or who identify as transgender.

1. Sexual and Gender Identity Youth in Foster Care: Assessing Disproportionality and Disparities in Los Angeles, Williams Institute, UCLA Law School, August 2014. https://williamsinstitute.law.ucla.edu/wp-content/uploads/ LAFYS_report_final-aug-2014.pdf Johanna Kwasniewski has a contract with Contra Costa Juvenile Advocates (CCJA) to represent children, parents, and legal guardians in juvenile dependency proceedings. She is also a board member of CCJA and is working towards her certification as a Child Welfare Specialist. She does not drink coffee, but enjoys a good cup of tea. Her last name is pronounced QUASH-NEV-SKI.

LGBTQ youth in foster care surveyed in Los Angeles were found to have higher than average numbers of foster care placements than their non-LGBTQ peers, reported feeling they were treated worse than other youth in the child welfare system, and were more likely to have been homeless at some point in their lives than nonLGBTQ peers.

AB 2119 aims to promote the safety, well-being, and permanency of all children in California’s child welfare system by providing services to transgender youth. Equality for California, a co-sponsor of AB 2119, writes, “Transgender youth and gender non-conforming youth are at extremely high risk for depression, poor health, and even suicide as a result of the rejection, harassment and abuse they experience in their homes, schools, and communities.”

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

17

CASA: Speaking Up for Youth An Interview with Ann Wrixon, Executive Director of Court Appointed Special Advocates (CASA) of Contra Costa County

by Robin Pearson In Contra Costa County there are approximately 1,000 abused or neglected youth that come under the court’s care because they are no longer able to safely live at home.

Can you imagine being taken away from your parents, your friends and life as you know it, not because of anything you did, but because they cannot, or will not take care of you or protect you? Then dozens of strangers enter your life: police, foster parents, social workers, judges, lawyers and more. This is a common scenario that abused and neglected children and youth face when they enter foster care.

During this difficult confusing time Court Appointed Special Advocates (“CASA”) can step in to speak for the child or youth’s best interest. It has been my privilege to serve on the CASA Board of Directors since 2012.

I recently interviewed the Executive Director of CASA – Ann Wrixon – to provide additional information for CCCBA members interested in learning more about this wonderful organization.

meet with teachers, mental health providers, attorneys and social workers so they can provide a complete and detailed report to the Juvenile Court about a child’s situation and make recommendations for improvement.

Additionally, CASA volunteers provide fun activities and support to the child. They take them to the movies, for a walk, or to a museum or baseball game. They talk to the children about what is important to them, and what would make their lives easier. The CASA volunteer is often the only adult in the child’s life who is not paid to care for them, and for many children, this is the most valuable part of having a CASA volunteer working on their behalf.

What is Court Appointed Special Advocates Program?

CASA of Contra Costa County provides volunteer advocacy services to children who are dependents of the Juvenile Court as foster children. CASA volunteers are appointed by the Juvenile Court and work one-on-one with these children, fostering a unique atmosphere of trust and mutual respect leading to a meaningful relationship. CASA volunteers visit the foster home, 18

MARCH 2019

Research shows that if children have even one consistent, caring adult in their lives, it can provide the support they need to complete their education and learn to trust and build healthy adult relationships. A CASA volunteer provides this stability and also has the trust of the court so that

they can provide meaningful input about appropriate educational, mental health and housing for the child or youth.

Does the program work? Does it help foster youth in Contra Costa County?

Research shows that children in foster care with CASA advocates have much better outcomes. They are able to find a safe, permanent home, spend less time in foster care, are less likely to be bounced from home to home. They are 50 percent less likely to reenter the child welfare system. In addition, they do better in school including being 20 percent more likely to pass all their courses, and 25 percent less likely to have poor conduct in school and less likely to be expelled. Finally, they score better on nine protective factors, including controls on deviant behavior, having a positive attitude about the future, valuing achievement, and having the ability to work with others and the ability to work out conflicts.

In the last fiscal year, CASA’s transitional-age youth (ages 16-21) had exceptionally good outcomes: 1. Only 48 percent of foster youth overall earn a high school degree or GED. However, 96 percent of CASA’s transitional-age youth were

in school or earned a high school degree or GED. 2. Only about 10 percent of foster youth overall go to college or other post-secondary education.

However, 67 percent of CASA’s youth who earned a high school degree or GED were enrolled in college or post-secondary education.

3. Living Skills: 65 percent of CASA’s transitional-age youth were enrolled in the county’s Independent Living Skills Program.

4. Overall, 33 percent of foster youth end up homeless, but 100 percent of our transitional age youth were housed.

5. Additionally 33 percent of foster youth end up incarcerated, but less than 1 percent of CASA youth are in the criminal justice system.

6. Education: 65 percent of CASA youth have an Individualized Education Plan (IEP). Only 6 percent of Contra Costa foster youth overall have an IEP. This may be why almost all CASA youth graduate from high school or earn a GED.

CASA program. CASA volunteers are highly trained and provided with ongoing support as they work with traumatized youth who have suffered abuse and neglect, and according to the research this is the best practice for a mentoring program.

$803,710 according to CASA’s June 30, 2017 audit.

What does it take to become a CASA volunteer?

Ann Wrixon has thirty years of experience in non-profit management as an Executive Director. She is also a Licensed Clinical Social Worker and has written extensively on issues related to the non-profit sector, child welfare and adoption.

Each CASA volunteer must complete 45 hours of initial training. In addition, they are required to obtain 12 hours of continuing education each year. They meet at least monthly with a team leader who is an experienced CASA, and twice a year they meet with CASA staff and a review board of child welfare professionals to discuss their case in detail before they prepare their court reports.

CASA volunteers spend an average of 15 hours a month working with their foster child. Last year our volunteers donated 30,513 hours in advocacy services valued at

Anyone is welcome to come to a free information session. We have both online and in-person sessions.

You can sign up on our web site at https://www.cccocasa.org.

Robin Pearson is a founder and owner of Pearson & Schachter. She is an experienced trial lawyer and served as President of CCCBA in 2008. Ms. Pearson also chaired the CCCBA Diversity Committee from 2002 – 2017 and is a member of the board of CASA. She is also a past president of Black Women Lawyers of Northern California and a past chair of the State Bar Council on Access and Fairness

7. Health Care: 91 percent of CASA youth saw a doctor in the last year, and 83 percent visited a dentist.

Overall, only 51 percent of foster youth overall in Contra Costa County saw a doctor and only 33 percent went to the dentist.

8. Finally, foster children and youth in Contra Costa County referred to CASA have been moved 4.57 times before they have a CASA volunteer assigned. After a CASA volunteer is assigned to their case the average number of moves declines to 2.1.

Q. Is CASA a mentoring program?

Although CASA volunteers are more than mentors, there is also a strong mentoring element to the CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

19

Installation Lunch & Diversity Awards On January 25, the CCCBA officially installed its 2019 Board of Directors and Section Leaders and presented the second annual Diversity Awards.

The new Presiding Judge, Hon. Barry Baskin gave a State of the Judiciary speech and Hon. Barry Goode received a Lifetime Achievement Award.

Thank you to Our EVENT SPONSORS GOLD LEVEL Cooper, White & Cooper LLP Hanson Bridgett LLP Lawyer Business Advantage Santaella & Jahangiri LLP

SILVER LEVEL Pearson & Schachter

BRONZE LEVEL JAMS Livingston Law Firm Miller Starr Regalia Quarles & Brady LLP

20

MARCH 2019

Above, Presiding Judge Barry Baskin addressed the group; Hon. Wendy Coats presented the Lifetime Achievment Award to Hon. Barry Goode; David Marchiano, Board Members and Section Leaders took the Oath of Office;Lubna Jahangiri and Mika Domingo; Section Leaders

2018 Diversity Award Winners CCCBA’s second annual Diversity Awards were presented to 16 deserving firms of all sizes. Based on the Diversity Check List, firms answered a series of questions in categories that include Education, Training and Communications; External Diversity Commitments, Internal Diversity Commitments; Recruiting & Retention. Make sure your firm is represented at next year’s Diversity Awards presentation. Check for the new Diversity Check List on the website this Spring.

Platinum Level Winners

PLATINUM LEVEL • • • • •

M.S. Domingo Law Littler Mendelson Pearson & Schachter Quarles & Brady LLP Santaella & Jahangiri, LLP

GOLD LEVEL • • • • • • • •

Gold Level Winners

Law Office of Ariel Brownell Cooper, White & Cooper LLP Hanson Bridgett LLP Leoni Law Livingston Law Firm Miller Starr Regalia Mora Employment Law S.C. Selleck Law

SILVER LEVEL Silver Level Winners

• Law Offices of Natasha S. Chee • Law Office of Marjorie Wallace • Washington & Associates

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

21

Every Child’s Right to a Free Appropriate Public Education:

The Basics

by Stuart Gilliam We are all no more than two degrees of separation from a child with a disability. If your own child or family member is not challenged in this way, you most assuredly know a friend, a neighbor or a colleague with a child who has a developmental delay, a physical handicap, a genetic disorder or an emotional disability.

And how – as counsel, friend, acquaintance – do you respond when you are asked legal questions about the education of that challenged child?

First and foremost, treat the family with kindness and consideration.

Fortunately, positive changes in society, medicine and neuroscience have reduced the stigma and secrecy that used to plague families and children with “differences.”

Nevertheless, the family has found

itself on a lifelong journey full of unexpected challenges. They are likely sad, possibly angry, and they may feel helpless. They may want to blame someone or something for the disability and for the child’s difficulties in learning even the basics. Since all children, abled or disabled, have a right to education in this country, these emotions sometimes lead to strained relations with educators and school districts.

Special education is currently governed by the 2004 Individuals with Disabilities Education Improvement Act (IDEA). The statute can be found at 20 U.S.C. § 1400, et seq., and Federal Regulations Volume 34 CFR § 300, et seq.

These govern how each state must educate the disabled: The education code of each state must comport with the federal laws. Additionally, the application of IDEA is subject to significant case law interpreting the codes.

What does this mean to the family that is talking to you? What does federal education law provide?

Here is a quick overview.

Under IDEA, a student with disabilities has a right to a Free Appropriate Public Education (FAPE).

The purpose of IDEA is stated at 20 U.S.C. 1400 (d)(1)(A):

[The purpose is] to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (emphasis added)

Continued on page 24

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

23

Every Child’s Right to a Free, Appropriate Public Education, Continued Under IDEA, educational services providing a “free appropriate public education” (FAPE) begin at age three and run through age 21.1(Exception: once a student receives a high school diploma—the alternative is a “certificate of completion” —the student is no longer eligible for educational services under IDEA.) So how does a family know if their child has a right to a FAPE under federal law? Many families know if something is different about their child before the child’s third birthday. But some disabilities are subtle, and some don’t manifest until later. No matter what, families have a right, under “Child Find,” to have the child assessed by the student’s local school district for identification of possible disabilities. According to 20 U.S.C. §1412(a) (3) and 34 CFR §300.111, states are mandated to locate, identify and evaluate all children with disabilities from birth through age 21, and are held responsible to assess children for not only visible disability, but for those which are not apparent through general observation. “Child Find” applies to all children who reside within a state, including children who attend private schools, those children whose living circumstances make them highly mobile, homeless children, migrant children, and wards of the state. If an educator suspects a possible disability, the educator must notify the school district. If a parent, guardian or interested individual notifies a child’s school district of a suspected disability and/or asks for an assessment, the district must assess for all suspected disabilities.

If a child is identified as having one or more disabilities that falls within the ambit of IDEA, then what?

24

MARCH 2019

If the child is enrolled in public school, the next step is an Individualized Education Plan (IEP) team meeting. The team consists of the school district representatives (school administrators, program specialists, general education teachers, special education teachers, intervention specialists and/or school psychologists, etc.) and family representatives (parents, guardians, private therapists and/ or child-advocates/attorneys, etc.).

The purpose is to build a plan that provides appropriate supports, classes, technology and accommodations, along with agreed-to measurable educational and social goals to be achieved. (IEP meetings are required to be held once a year but families have a right to request them more often.)

Subsequently, the district must develop an offer of FAPE (i.e., how the district will support the child and the child’s disabilities in the Least Restrictive Environment (LRE)). LRE requires that students with disabilities receive an education to the maximum extent appropriate. This includes social integration, including classes with nondisabled peers. The right to LRE ensures that disabled students are not removed from regular classes unless education in regular education classes cannot be achieved, even with supplemental aids and services. (20 U.S.C. §1412(a)(5)(A) and CFR §300.114) If the child is enrolled in a private school by the parents’ choice, the process is similar, and the result is an Individualized Service Plan (ISP).

This may include some supports

and services through the district but does not include the tuition for private education.

It is the IEP/ISP process that often causes the friction between families and school districts. Families usually want what is “best” for their child. But the law only requires what is “appropriate.” (One of the first things to do when working with families with special needs students is to remove “best” and “ideal” from their vocabulary. These words will often be met with dismissiveness and sometimes anger from the school side of the team.) What goals and supports are “appropriate” is typically the sticking point. Families typically want ambitious goals and maximum support and accommodations (including often, non-public school placement). The school district part of the team is subject to constraints of budget, what is available in the particular district, and often believes it knows the student better than the family.

Families have the right to bring counsel to IEP meeting (with notice) if they think that districts are failing to provide FAPE. If they do, the district will usually also bring counsel. Sometimes this can facilitate an agreement, but sometimes it results in a hardening of positions. If agreement for FAPE cannot be reached, the family can request mediation or file a Due Process claim. But this, again, ups the stakes for both sides. Families are entitled to attorney’s fees only if they prevail at Due Process, and fees are subject to limitations. Challenging a district can be an expensive process. Decisions can be appealed to Federal District Court by either side, and cases have made it all the way to the United States Supreme Court.

I personally believe in counseling families to attempt to build bridges, rather than burn them, when possible. Remember that families and districts may be working together for many years, long

after the initial “combatants” have withdrawn. Therefore, I initially approach my district counterparts with questions instead of demands.

School districts are not monoliths; they are made up of a variety of people—mostly well-intentioned— with observations, opinions and constraints of their own. It is often advantageous to seek out reasonable, insightful educators who will listen to parents and child advocates, and who will then offer up pertinent strategies and helpful services. That said, there are times when confrontation, intransigence and/or escalation is essential when a child’s needs are not being met.

I recommend that families obtain written resources to gain a basic understanding of the law. Three good books are Special Education Law and From Emotions to Advocacy, both published by Wrightslaw

(wrightslaw.com) and the Special Education Rights and Responsibilities Handbook (SERR) from the Community Alliance for Special Education (CASE) (caseadvocacy. org).

Children, families, and society are well-served when special needs students are educated and helped to achieve their maximum potential.

Parents should be aware that they are not alone in this pursuit.

Educators, advocates and therapists also have a role to play, all supported by the framework of IDEA, state laws, education codes, and, hopefully, collaboration.

in operating a comprehensive statewide program of early intervention services for infants and toddlers with disabilities, ages birth through age 2 years, and their families.

After over 20 years of practice in litigation, Stuart Gilliam opened a special education practice, S. C. Gilliam Law, in 2014. He came to it rather naturally, having a son on the Autism Spectrum. His son is now 29. www.scgilliamlaw.com.

925-280-1500 or stuart@scgilliamlaw.com

The Program for Infants and Toddlers with Disabilities (Part C of IDEA) is a federal grant program that assists states

1.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

25

Bar Soap

by Matthew Guichard

So many things happening in our legal world, it is hard to know where to start. So, where to start?

The year 2018 kept our legal community on its toes, right up to the last day. And 2019 wasted no time in taking the baton and charging ahead. The news is a whirlwind of activity, and most of it good. I must say I am very proud of our Contra Costa County Bar Association and the tremendous support we get in complying with ever more stringent requirements from the State Bar. Live scanning fingerprints is just one example of their conscientious help. Remember, that is a must, so don’t delay. (See page 37 for more information.)

Speaking of new rules, don’t forget to communicate in writing with your clients, prior to that mediation.

New rule and new requirement.

The year ended with many new laws on the books which will impact all of us and our legal work. I know I am repeating myself, but we are a nation of laws and a community of laws.

Lawyers are necessary and of great benefit in steering clients through the legal thicket. Be proud of your work. We saw the appointment of a number of new and familiar faces to our Contra Costa County Superior Court Bench. Congratulations 26

MARCH 2019

to Wendy Coats who was supposed to take the helm as our new CCCBA President. Instead she will be wearing a black robe. James Wu gets the nod for another year as President. John Devine and Linda Lye were also appointed to our bench.

And Judge Judy Craddick retired at the end of the year.

We also mourned the loss of some longtime local legal luminaries.

We lost Bill O’Malley and Coley Fannin. Both served as president of the CCCBA back in the day. I knew both of them, having served as a Deputy DA under Bill O’Malley and having tried a number of cases before Coley Fannin, then using him as a mediator during his time at JAMS. I do recall being the Deputy DA in Bill O’Malley’s first case after being appointed to the bench. His name was on the “Information” and we had to get a waiver from the defendant to proceed with having the Judge be the same person whose name was on the complaint and the information. So, I thought I knew both of them pretty well. I was wrong! I attended the celebrations of their lives and learned new and fascinating bits of information about both of them. Sad but true we often do not get the real picture of a person until we attend the funeral.

At any rate, their respective lifetime accomplishments were tremendous.

Speaking of accomplishments, the 2018 MCLE Spectacular was another great success. Kudos once again to the Bar Association. The new twist in the presentation of the speakers was very effective. Having the interview style was warm and intimate.

Started off with Wendy having a chat with Associate Justice Leondra Kruger of the California Supreme Court. Seated in what looked to be quite comfortable chairs, the interview was a real treat. Don’t know whose idea it was for that interview method of presentation, but congratulations to whomever thought of it. Much better than the old grip the podium and deliver a lecture. The MCLE Spectacular just keeps getting better, and certainly the most well attended event legal event in the County. And I might add, the best way to see old friends and colleagues.

Still trying to see where all those Archer Norris lawyers and staff landed. I know David Marchiano, Michael Peterson and a couple of staff members landed with Brown Gee & Wenger. I also heard a team went to Lewis Brisbois. Haven’t heard those names yet. Let me know and I will mention their names in the next column. Our readers always want to know about people on the move.

Laura Pagey retired from the Solano County DA’s Office and has opened a law practice in Walnut Creek.

Welcome to Walnut Creek and the Contra Costa legal community Laura.

Jumping to the 2019 Annual Installation luncheon; quite impressed with all the new faces. Our Bar Association and local Bench are ever changing, growing and adding many young and diverse members.

No moss growing there! That event is also always a sellout and a must attend event. This year the focus was on “Diversity” and the presentation of a number of impressive diversity awards. Also an opportunity for James Wu to give a second “State of the Bar” speech. Did also enjoy Presiding Judge Barry Baskin’s speech on the seemingly ongoing attack on the judiciary. Timely and

non-political. Once again, we are a nation of laws and the importance and absolute necessity of our independent judiciary cannot be stressed enough.

The Contra Costa High School Mock Trial Competition recently took place in our local courthouse. Thanks much to John Lance of the Contra Costa County Office of Education and all the volunteers who served as judges or attorney scorers. Volunteer next year. The high school students are very impressive. Hours and hours of preparation and many are more polished than real attorneys. Coley Fannin volunteered each year as a Mock Trial mentor at Acalanes High School. Several times he sat in my courtroom as I was the judge. Always wondered what he thought of my rulings.

Very troubling to see the State Bar passage rate as low as I have ever seen it. The November 2018 passage rate was an abysmal 40.7 %. percent.

The ABA wants to see a first firsttime bar passage rate of 75 percent in order to achieve ABA accreditation. Why has the rate fallen so and what can be done about it?

A final note on civility. It is a major tenant of the Inns of Court and something sorely missing in many of our legal engagements. As a client once told me “It doesn’t cost money to be nice.” Fortunately he was not directing the comment at me. At least I hope he wasn’t. Be prepared, know the law, insist on integrity and always be civil. And remember the only one who gets hurt when an attorney is a jerk is the client.

h

Depositions – Court Trials, Motions, Hearings – Arbitrations – Statements/EUOs – AudioTranscriptions –Mediations

h

Video & Interpreted Depositions

h

Realtime / LiveNote Reporting

h

Video Depositions

h

Interpreters

h

Online Scheduling of Depositions

h

Complimentary Deposition Suites, Wifi and Parking

h

Document Depository

h

Subpoena for Production of Business Records Preparation and Service

h

Complete Document Copying Service (on-site and off-site)

Fax 925-685-3829

h

Scanning (on-site and off-site), Bates Stamping

“Yes, we can. No problem!”

h

Briefs – Copying, Binding & Filing

h

Online Requests - Transcripts, Depository Documents, Subpoena Preparation, Authorizations

Certified Shorthand Reporters Independently Owned and Operated

Serving the Entire Bay Area since 1958 Contra Costa, Solano, Alameda & San Francisco Counties 2321 Stanwell Drive Concord, CA 94520-4808 email: Contact@ZandonellaZRS.com www.ZandonellaZRS.com

925-685-6222 -John A. Zandonella

Just 1/4 mile from Buchanan Airport and near BART. JuST CAll AnD We Will PiCk you uP!

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

27

IN MEMORIAM

Call Me “Coley”:

Reminiscing About Judge Coleman Fannin

by Hon. Mark Simons

28

Judge Coley Fannin, MC of the CCCBA Bar Fund Benefit in 2011

Close your eyes and imagine it’s 1973: bell bottoms, overlong sideburns, McGovern in the rearview and Watergate just over the horizon.

Imagine further (and this may be a stretch) that you’re Mark Simons, a newly-minted public defender.

You’re heading to your first felony pretrial conference in front of the emperor of Department 11, Coley Fannin, the most recent appointee to our Superior Court, who had actually volunteered to do the criminal calendar.

prosecution case and B equals the degree of your client’s unsavory past. And most importantly, you’ve arrived at the correct answer, felony probation. Then the conference in chambers begins. Both sides present their positions and Judge Fannin dictates into a microphone: “People v. Smith, three counts of armed robbery. People’s position… state prison. Defense position… felony probation, which is foolish, a waste of our time. My position is state prison. Next case.”

expectations that inspired me.

While no one anticipated a sweetheart deal or even gentle treatment, the criminal law and motion part of his assignment was a revelation. If your motion to suppress was wellresearched and well-written, he noticed. And if it actually had merit, he’d grant it; the non-default position in many departments. Not with a heart-to-heart pep talk, but with an occasional win to reward a meritorious motion, Coley motivated me to do the best job I could.

You’ve done the math to prepare for the conference: derived the square root of the product of A and B, where A equals the strength of the

Coley was a force of nature, and you could get blown over in heavy weather.

Exceptionally bright, frequently brusque, he had high

In my public defender career, I had one case that went to the California Supreme Court and created a defendant’s limited right to a lineup. In his

MARCH 2019

earlier ruling denying my motion, Coley had waxed eloquent about the trial judge’s need for discretion to grant such a motion and said if he had that discretion, he would exercise it. Though his ruling had far more to do with the Supreme Court’s ultimate decision than anything I wrote, I never passed up the opportunity to remind him of the reversal.

I have no doubt other lawyers of my vintage were similarly inspired to do their best by Coley’s expectation of excellence.

After my appointment to the Municipal Court in 1980, Coley and I kept in touch, and his confidence in me was a frequent boost to my confidence in myself.

Coley’s contribution to our legal community far exceeds his influence on one young lawyer/judge.

He served on our Superior Court for 16 years and became legendary as a settlement judge. He served on the executive board of the California Judges Association and received numerous honors, including being

If you dug even a little beneath Coley’s combative exterior, you found a terrific human being. He and Arlene raised five wonderful children, including Jill, who recently served as our presiding judge.

After retiring from JAMS a dozen years ago, Coley devoted himself to caring for Arlene, who suffers from macular degeneration.

And, the great value he placed on friendship was evident and once touched me. Some years ago a lawyer from Seattle came to the Bay Area to mediate a case with Coley. That lawyer, Steve, had been my best friend in college, but we’d fallen out of touch.

Somehow Coley pried out this fact, “ordered” him to get back in touch with me, and provided my number.

Steve said he would call, but Coley clarified he was to do it then, immediately, and recessed the mediation.

Coley was a force of nature, and you could get blown over in heavy weather.

Exceptionally bright, frequently brusque, he had high expectations that inspired me.

With Coley, the sunny days far outnumbered the stormy ones. At social events no one was more gregarious. In court, his amazing ties, crafted by his wife, Arlene, reflected his engaging personality. Outside the courtroom, Coley was quite competitive. Several of us loved playing racquetball with him and always obeyed rule number one: DO NOT find yourself anywhere between him and the ball.

chosen as the California Judge of the Year by the CTLA. He was a critical factor in JAMS becoming a state-wide, then national, then international powerhouse in mediation.

And he still found time to coach the Acalanes mock trial team.

You handle the estate, we’ll do the contest

oldest partnership in Contra Costa County (since 1955)

925.283-6816 • www.pedderlaw.com

3445 Golden Gate Way, Lafayette, CA 94549 aV Martindale-hubbell

May his memory be a blessing.

Mergers &

Acquisitions

Wills/Estates Contests Conservatorships

Cases (except conservatorships) on contingent fee basis or hourly.

Referral fee where appropriate.

Pedder, hesseltine, walker & toth, llP

If we’re lucky, we meet a person like Coley early in our lives, and benefit from that ever after. I had that good fortune.

Hubert Lenczowski 1615 Bonanza Street #212 Walnut Creek, CA 94596 (925) 280-7788 hubert@lenczowskilaw.com www.lenczowskilaw.com

Attorney At Law A Professional Corporation

Planning Exits and Growth Acquisition for Business Owners

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

29

IN MEMORIAM

My Best Friend,

Bill O’Malley

by Hon. Rick Flier (ret) Bill O’Malley was an exceptional person. For 11 years I worked for him when he was the District Attorney of Contra Costa County, for 10 years we were colleagues on the Superior Court Bench, and for the next 23 years we were best friends.

After I left the Bench, Bill and I had a standing date for breakfast at the Hickory Pit in Walnut Creek every Monday morning at 8:00 a.m. By the time I arrived, he had finished reading the paper and was two-thirds through the crossword puzzle. (If you’re interested, he always ordered poached eggs, toast, juice and tea. We picked Mondays because his Rossmoor cleaning lady came on that day and he couldn’t stay in bed once she arrived.)

He described himself as “Boston Shanty Irish”---not to be confused with “Lace Curtain Irish.” During our friendship of 45 years he was the most unaffected, down-to-earth, genuine, sensitive, funny person I’ve ever known. Given the right circumstances, we could have solved the problems of the county county and the world with our morning talks. . . or at least we would have been satisfied with our solutions.

He was also a popular and astute politician. During his active years, I doubt there was any organization in Contra Costa County that wouldn’t enthusiastically welcome him to their gatherings and ask him to speak.

They all knew Bill and amazingly, he knew their names and was familiar with each of them. He worked hard at this acceptance. He attended “Toast Masters” to develop his speaking 30

MARCH 2019

skills, attended two or three gatherings each night and thoroughly enjoyed the give-and-take of political life.

He was elevated to the public eye unexpectantly when John Nejedly became a State Senator and the Board of Supervisors had to appoint his replacement to fill out the District Attorney’s term until the next election. Bill was not a front runner for the position, but, as he analyzed it, he would win the appointment. He understood the relationship between each member of the Board and the front runners, determined that none of them could receive three votes, and he was everyone’s second choice. True to his analysis, he got the appointment.

His next political challenge was to get re-elected in a county-wide election against a well-known attorney from Richmond. He called upon his friends and family to pitch in and help. To encourage his children, he promised that if he won the election, he would put in a swimming pool at their house in Danville. After the successful election his children began to press him for the pool. Bill responded, “Let me think about that.” Bill’s wife, Claire, immediately responded, “Typical politician, already breaking your promises!”

The pool was soon constructed at the O’Malley house.

After that election, Bill had established himself as an unbeatable political force in the county, and he was

elected unopposed in every countywide contest thereafter.

This includes his election and re-election to the Superior Court.

I asked him if the case got filed anyway. He said he didn’t know.

He just left the file in a desk drawer and walked out!

and families. They all know how to work hard, but also they know how to have a good time, be happy and love each other.

Robert Frost wrote a poem about the “road not taken.” O’Malley seemed to run counter to his fellow New Englander. Bill was constantly returning to a place or an activity he had done before.

In a similar way, once Bill became District Attorney, he would have a chat with his new attorneys, find out how they were settling in, and then he would talk about responsibility.

He told us of the awesome power we were entrusted with as Deputy District Attorneys. Our decisions would have great impact on the lives of those arrested and accused of a crime as well as their families. He told us always, “Do the right thing no matter what the consequences or pressures involved.”

Lastly, Bill would say, “Never compromise your integrity.” Bill would sometimes say, “Do what it is.” We interpreted this to be the shorthand reminder of this admonition.

Bill and I went on several trips together.

The most memorable were those that were spontaneous.

We would drive to Squaw Valley to ski, and when the slope was closed due to high wind, we would end up in Virginia City. We went to the Cal-Oregon game in Eugene, Oregon and ended up in the luxury box seats on the 45 yard line because his daughter-in-law, Mary Ann, graciously gave them to us. At halftime she wanted them back because it was raining heavily. The owners of the luxury box were also trying to figure out how these Cal rooters got into their sacred space! Bill graciously declined the invitation to leave.

Bill was very proud and independent. Even as he went in to his nineties, he railed against people trying to help him walk; however, if one of his grandchildren said, “May I help you, Grandpa?” . . . that was different!

As I remember Bill, his final trip truly made an exclamation point to his life. As his casket was moved from the church following his funeral, a bagpipe started to exhale.

I was expecting to hear “Amazing Grace,” the usual funeral dirge.

Much to my surprise, relief and pleasure, the pipes proudly broke into “When Irish Eyes Are Smiling.”

How perfectly appropriate! Bon Voyage, Bill. May angels escort you to your final destination . . .with no side trips. I’m ever so glad I knew ya.

He finished his World War II Navy service in Alameda, California.

Eight years later he packed his twodoor coupe with all of his family’s possessions. With his wife, Claire, and their two small children, they began the drive to California from the East Coast. Someplace in the Southwest he stopped the car, dumped some of their possessions so his children could sit on the seat instead of pinched between a small mattress and the car ceiling and drove onto the Bay Area. Bill with grit and determination had returned to California!

He resumed his work as an insurance adjustor and went to law school at night at Golden Gate University.

He graduated first in his class. During the next few years, he alternated between being a claims adjustor, a private attorney and a Deputy District Attorney. He really enjoyed the prosecutor’s job; however, as he and Claire raised their nine children (and sometimes some neighborhood kids, too!) his job selection was dictated by how much money was needed to support the household.

Bill was a very honorable and moral person. The last time he was a Deputy District Attorney he became embroiled in a dispute with his superiors. He felt it was morally and ethically improper for him to file a specific criminal case.

The evidence didn’t support it. His superiors persisted and ordered him to file the matter. Bill felt this was wrong, and he quit the office.

He also made it a point to make every grandchild’s and great grandchild’s baseball, football, and basketball game. This would require him to drive to three or four different cities in one day. He truly enjoyed the efforts of each of the teams as he cheered “Good play” from his lawn chair. He became such a fixture at these games that it was common for both teams to run to his location after a game and give “Grandpa” a high-five!

It has been said that Bill O’Malley was the patriarch of an amazing family. O’Malleys are identified in many public positions of responsibility throughout the Bay Area. Bill certainly recognized this legacy; however, I felt he was most proud that his children were responsible people who had successful lives

Thinking of

Conservatorships? think

Matt Toth as in:

Pedder, hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955)

925.283-6816 • www.pedderlaw.com

3445 Golden Gate Way, Lafayette, CA 94549 AV Martindale-hubbell

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

31

Welcome New Members!

Welcome Aboard to these CCCBA members who joined between November 1 and January 31. We hope you take advantage of the CCCBA and its opportunity for: 1. Professional Development and Networking 2. Community Service 3. Continuing Legal Education 4. Lawyer Referral & Information Service 5. Publications, Mobile App & Social Media 6. Member-Only Benefit Program Discounts

For information on any of these member benefits, please visit our website at www.cccba.org.

Adriana Ahumada

Yuli Jacobson

Carly Alameda

Gerald Kipper

Roxanna Alavi

Heather Kirkpatrick

Mario Andrews

David Knitter

Zee Azizi

John Kopilow

April C. Ball

Gretchen Latimer

Anna Balogh

Matthew Matejcek

Travis Brooks

Julio Mateo

Alexander Burkhardt

Aileen Mazanetz

Lisa Cho

Colleen Meyer

Jeff Coons

Steven Miyake

Steven Cross

Donna Mooney

Hayley DiPerna

Keith Myers

Alan Elnick

Jennifer O’Connor

Karren Freedman

Laura Pagey

Kevin Fusch

Alka Ramchandani Raj

Richard Ginelli

Nicholas Roscha

Jeffrey Gourgon

Emilie Russell

Giselle Guro

Tony Suggs

Ryan Hafey

Kristen Tabone

Kyla Hale

Chenthen Thambiaiyah

Cathryn Hammer

Alexander Tomp

Barbara Hannon

Jonathan Werlang

John Hong

Michelle Zmugg

32

MARCH 2019

gratefully acknowledges its

2018-19 SUSTAINING LAW FIRMS Firms with 20+ attorneys: Bowles & Verna, LLP Littler Mendelson, PC McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP Miller Starr Regalia

Firms with 15-19 attorneys: Brothers Smith, LLP Clapp Moroney Vucinich Beeman Scheley Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

Firms with 5-14 attorneys: Barr & Young Attorneys

Bramson, Plutzik, Mahler & Birkhaeuser, LLP Brown, Gee & Wenger, LLP

Craddick, Candland & Conti

Doyle Quane Freeman Family Law Group Edrington, Schirmer & Murphy Ferber Law, APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey

Greenan, Peffer, Sallander & Lally, LLP Hartog Baer & Hand, APC

Kilpatrick Townsend & Stockton Livingston Law Firm, PC Morrill Law Firm

Whiting, Fallon, Ross & Abel, LLP

Thank You to Guest Editors of the Children’s Rights Issue Thank you to the two guest editors of this month’s edition. Both have been volunteers with Court Appointed Special Advocates of Contra Costa County (CASA), Robin Pearson as a member of the board and Barbara Suskind as an attorney consultant for CASA Case Reviews for many years. They are both active members of the CCCBA. They pitch in to help on everything from the Diversity Committee to the Family Law Double Pro-Per Clinic and the Bar Fund Benefit.

Robin Pearson is a founder and owner of Pearson & Schachter. She is an experienced trial lawyer and served as President of CCCBA in 2008. She chaired the CCCBA Diversity Committee from 2002 – 2017 and is a member of the board of CASA. She is also a past president of Black Women Lawyers of Northern California and a past chair of the State Bar Council on Access and Fairness.

Barbara Suskind retired from litigation about 10 years ago, having practiced Family Law, Juvenile Dependency and Probate Guardianships for 25 years. She is currently maintaining a private mediation practice as well as serving as private judge, referee and Special Master in difficult Family Law cases, mediating juvenile dependency cases, and is President of the Congress of Neutrals.

Robin Pearson

The Benefits of

Barbara Suskind

Office & Virtual Office Solutions

Membership Victory Workspace, home of Reliable Receptionist Shared workspace, meeting rooms and telephone receptionist services.

In the January issue of Contra Costa Lawyer an incorrect telephone was published for Reliable Receptionist, one of the Premium Member Benefit Providers for the CCCBA. For further information on the benefits that are provided to CCCBA members, please visit www.cccba.org and click on Assistance and Services and select Member Only Benefits.

Victor Mataraso 1261 Locust St. Walnut Creek, CA 94596 (925) 482-8300 Victory Workspace www.VictoryWorkspace.com (925) 627-4200 Reliable Receptionist www.ReliableReceptionist.com Discount: CCCBA Members receive 50% off initial setup fees, a $25-$75 value depending on options selected.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

33

The February Issue of Contra Costa Lawyer – Here’s What You Missed in the

New Rules of Professional Conduct Issue Thank you to Nicole Mills, Guest Editor Find it online at www.contracostalawyer.cccba.org Columns:

Features: • Strict New Mediation Rule Now Effective,

by Robert B. Jacobs *MCLE SELF STUDY

• Inside: Ch-Ch-Ch-Ch-Changes!,

by Nicole Mills, Guest Editor

• Conflicts of Interest Under California’s New Rules of Professional Responsibility, by Ted Brown

• Coffee Talk: Pro Bono Work

• I’m Too Sexy . . . For My Client! New Rules on Sexual Relations Between Attorneys and Their Clients, by Jeffrey Thayer & Natasha Chee

• President’s Message: The Birth of a Section,

by James Wu

• Rule 1.18: Guess what? You have a duty to prospective clients, by Mary Grace Guzman • RULES 1.5, 1.5.1 and 1.15-Changes to How Attorneys Hold Funds and Charge Fees, by Lorraine Walsh • This Hearing May Be Recorded For Your Protection,

by Matthew Kitson

Advertiser Index

Probate paralegal to attorneys Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507 Call (925) 689-9244.

ADR Services . . . . . . . . . . . . . . . . . . . 7

Lenczowski Law Offices . . . . . . . . . . 29

CONFERENCE ROOM AVAILABLE

Barr & Young Attorneys . . . . . . . . . . 25

Novak Wealth Management . . . . . . . . 2

Brillant Law . . . . . . . . . . . . . . . . . . . . 13

Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . 19, 29, 31

CCCBA members receive a discount on renting the conference room at the CCCBA office in Concord. Rent by the hour or by the day for client meetings, negotiations or other small group sessions. Convenient location near Concord BART. For information contact Barbara Arsedo at the Contra Costa County Bar Association at (925) 370-2544 or barsedo@cccba.org.

Diablo Valley Reporting Services . . . 40 First Republic Bank . . . . . . . . . . . . . . 10 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . 22 Landmark Valuation . . . . . . . . . . . . . . 9 LawPay . . . . . . . . . . . . . . . . . . . . . . . . 4 Law Offices of Oliver Bray . . . . . . . . 17

34

Classifieds

MARCH 2019

Candice Stoddard . . . . . . . . . . . . . . . . 9 Jeffrey R. Windsor, Mediator . . . . . . . 7 Michael J. Young . . . . . . . . . . . . . . . . 15 Zandonella Reporting Service . . . . . 27

notary service CCCBA members are eligible for free notary service at the CCCBA office in Concord.

Contact Carole Lucido at (925) 370-2542 or clucido@cccba.org for an appointment.

Calendar

Upcoming Events | Overview March 12 | Women’s Section Women’s Section Happy Hour more details on page 36

March 20 | CCCBA Happy Hour Gathering at Smith’s Landing in Antioch

more details on page 36

April 5

| Criminal Law Section

CRIMMIGRATION - at the Center of the Fire and the Fury more details on page 36

April 9 | Women’s Section Women’s Section Power Lunch more details on page 36

April 17 | Women’s Section 2019 Annual Wine Tasting & Silent Auction Scholarship Fund Raiser

more details on pages 36

April 30 |

EP&P Section

26th Annual Estate Planning Symposium more details on page 36

May 1 | Senior Section Senior Section/Law Day Meeting more details on page 37

May 1 | CCCBA CCCBA Annual Membership Meeting more details on page 37

May 8 | Real Estate Section Unlawful Detainer Trial: Key Issues for Plaintiff and Defendant more details on page 37

March - April State Bar Mandated Fingerprinting more details on page 37

The Contra Costa County Bar Association certifies that the MCLE activities listed on page 36-37 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

Happy Hour Gatherings Announced for 2019

Mark your calendar for these casual, no host events, where CCCBA Board Members and Section Leaders gather with CCCBA members in a relaxed, happy hour setting to socialize from 4:30 pm - 7:00 pm.

March 20 - Wednesday - Antioch: Smith’s Landing May 22 - Wednesday - Concord: Residual Sugar (at the Veranda) July 25 - Thursday - Walnut Creek: Calicraft Brewing Company - Tap Room August 29 - Thursday - El Cerrito: Elevation 66 October 24 - Thursday - Danville: The Vine at Bridges CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

35

March 12 | Women’s Section

March 20 | CCCBA

April 5 | Criminal Law Section

Women’s Section Happy Hour

Happy Hour Gathering at Smith’s Landing in Antioch

CRIMMIGRATION - at the Center of the Fire and the Fury

Join your CCCBA friends for a casual, no-host event, where CCCBA members gather in a relaxed happy hour setting to socialize.

Don’t expect anything formal like name tags or check-in tables. Come when you can, grab a beverage, and find us on the patio or in the bar area. A gathering of the CCCBA big or small, is typically hard to miss.

Speaker: Ali Saidi, Esq.

Think LinkedIn but over drinks. This Happy Hour is an opportunity to meet and build professional relationships.

Time: 5:00 pm – 7:00 pm Location: MoMo’s Walnut Creek, 1444 N. California Blvd., Walnut Creek RSVP: Please email the section at cccbawomenssection@gmail.com The RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come!

This is a no host Happy Hour.

Location: Smith’s Landing, One Marine Plaza, Antioch Don’t miss these upcoming Happy Hours: • Wednesday, May 22 at Residual Sugar at the Veranda, Concord • Thursday July 25 at Calicraft, The Taproom, Walnut Creek • Thursday August 29 at Elevation 66, El Cerrito • Thursday, October 24 at The Vine at Bridges, Danville

Time: 11:15 am – 1:15 pm Location: Creek Monkey 611 Escobar St., Martinez MCLE: 1 hr. General credit Cost: $25 Criminal Law Section members, $30 CCCBA members, $35 non members, $15 Law Student Section members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Anne Wolf at (925) 370-2540 or awolf@cccba.org

April 9 | Women’s Section

April 17 | Women’s Section

April 30 | Estate Planning &

Women’s Power Lunch

2019 Annual Wine Tasting & Silent Auction Scholarship Fundraiser

26th Annual Estate Planning Symposium

The Women’s Section Power Lunch is an opportunity to meet and build professional relationships.

The RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come!

• Parking garage next door • Variety of food choices and meal sizes • Pay for self, no registration, no split checks.

36

Time: 4:30 pm – 7:00 pm

Crimmigraton is at the at the center of the fire and fury–the juxtaposition between criminal law and immigration law. Do you know that criminal practitioners are responsible for advising their noncitizen clients on the immigration consequences of criminal pleas and convictions? Learn what to do from the best.

Proceeds from this festive event benefit the Hon. Patricia Herron & Hon. Ellen James Scholarship, awarded annually to deserving law students who have shown leadership potential, achieved academic success, and helped to advance women’s issues.

Sponsorships Available: Contact Patanisha Davis, (925) 238-0444, or pat@keycounselpc.com

Time: 11:30 am - 1:00 pm

Time: 5:15 pm – 7:30 pm

Location: Tender Greens, 1352 Locust St., Walnut Creek

Location: Round Hill Country Club, 3169 Round Hill Rd., Alamo

RSVP: Please email the Women’s Section at cccbawomenssection@gmail.com

Cost:

Upcoming Power Lunch dates at Tender Greens: • Tuesday, July 9 • Tuesday, September 10 • Tuesday, November 12

Register: Online at www.cccba.org/attorney/ calendar

MARCH 2019

$65 CCCBA members; $75 non members

Probate Section

This year we will be exploring how to do estate planning for a client who is going through divorce. The court automatically issues a TRO on transferring property and making changes to estate plans. So what is a planner to do?

Find out here on April 30th.

Co Sponsored by Wealth Management at Mechanics Bank Time: 1:00 pm - 4:45 pm Symposium; 4:45 pm - 5:45 pm Cocktails/Networking Location: Lesher Center for the Arts, 1601 Civic Dr., Walnut Creek MCLE: 3 hours TBA Cost: TBA Registration: Online at www.cccba.org/attorney/calendar

May 1 | Senior Section

May 1 | CCCBA

May 8 | Real Estate Section

Senior Section Kick Off Luncheon

CCCBA Annual Membership Meeting

Speaker: Diana Becton, Contra Costa County District Attorney

Please join us for the 2019 Annual CCCBA Membership Meeting. This is an opportunity to meet your Board members and share your thoughts about the CCCBA.

Unlawful Detainer Trial: Key Issues for Plaintiff and Defendant

Join us as we celebrate Law Day 2019: Free Speech, Free Press, Free Society.

Have a question for the board? Please submit them by Wednesday, April 24th to Theresa Hurley at thurley@cccba.org.

Time: Noon – 1:30 pm Location: Scott’s Seafood, 1333 N. California Blvd., Walnut Creek

Time: 5:30 pm

Cost: $40 for Senior Section members, $45 CCCBA members, $50 non members

Location: CCCBA Building Conference Room, 2300 Clayton Rd., first floor, Concord

Registration: Online at www.cccba.org/attorney/calendar

RSVP: Online at www.cccba.org/attorney/calendar

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

More Info: Contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org

Commissioner Lowell Richards will discuss tips and strategies to litigate residential unlawful detainers in Contra Costa County from three-day notice to writ of possession.

Commissioner Richards has been the Contra Costa County Commissioner for traffic, small claim unlawful detainers and civil harassment since 2001. Dinner is included.

Time: 5:00 pm – 7:30 pm Location: CCCBA Building Conference Room, 2300 Clayton Rd., first floor, Concord MCLE: 2.25 hrs. General credit Cost: Free for Real Estate Section members, $20 Law Student Section members, $40 CCCBA members, $50 non members Registration: Online at

www.cccba.org/attorney/calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

State Bar Required Live Scan Fingerprinting Under California Rule of Court Rule 9.9.5, all active attorneys licensed in California must be re-fingerprinted by April 30, 2019. The CCCBA is working with local Live Scan company, Sealed with Integrity to make sure you have multiple opportunities to get your fingerprints taken. Please note that you can choose any certified Live Scan vendor to comply with this new rule.

2019 DATES & TIMES: Visit the CCCBA calendar to find a link to Sealed with Integrity to make reservations (Required).

Concord Martinez Walnut Creek CCC DA Community Room, 900 Ward St. (entrance on Court St.) Martinez

Contra Costa County Bar Association 2300 Clayton Rd, Suite 520 Concord

Casper, Meadows, Schwartz & Cook 2121 N. California Blvd Suite 1020 Walnut Creek

• Tuesday, March 12 8:30 am - 4:30 pm • Friday, April 26 8:30 am - 4:30 pm

• Friday, March 15 8:30 am - 4:30 pm • Friday, April 5 8:30 am - 4:30 pm

• Friday, March 8 9:00 am - 4:00 pm • Tuesday, April 16 9:00 am - 4:00 pm

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

37

Lunar New Year The CCCBA celebrated its second annual Lunar New Year event on February 13 at Sichuan House in Walnut Creek.

Attorneys, judges and legal professionals gathered for a festive evening, enjoying great food and drink and of course fantastic company. Proceeds of the evening went to the Center for Youth Development Through Law. Thank you to all who attended and especially to the generous sponsors of the event.

Top: Nancy Schiff and Dorian Peters; Hon. Judy Johnson with Mukesh Advani; Jeff Thayer, Audrey Gee and Natasha Chee; Gisele Guro with Carolyn Cain; Hon. Wendy Coats, Mika Domingo, James Wu and Nicole Mills; Nick Casper with David Marchiano 38

MARCH 2019

A BIG THANK YOU to the firms that sponsored this event: GOLD M.S. Domingo Law Brown, Gee & Wenger LLP Law Offices of Jim W. Yu

Top: Nancy Schiff, Executive Director of the Center for Youth Development Through Law thanked the group for its support.

Vanessa Candelaria with Hon. Christopher Bowen and Alice Cheng; CCCBA Executive Director Theresa Hurley joins Patanisha Davis, Mike Pierson and James Wu. Hon. Wade Rhyne, Hon. Linda Lye and Hon. Wendy Coats. Sam Chhun.

SILVER Law Office of Ariel Brownell Flicker, Kerin, Kruger and Bissada, LLP Key Counsel PC Leoni Law Livingston Law Firm Pearson & Schachter Quarles and Brady, LLP S. C. Selleck Law

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

39

Deposition Reporting in Contra Costa County since 1986

Trusted with the Bay Area’s most complex cases, Diablo Valley Reporting Services has been part of the legal landscape for more than 30 years.

Contra Costa County attorneys have come to rely on DVRS as a firm that is large enough to handle the most challenging cases, but small enough to provide the utmost in personal and professional service.

• • • • • •

Proud to Partner with Some of the Area’s Best Certified Shorthand Reporters Leading Technology Personal Service and Delivery Deposition Suites and Conference Rooms Available Centrally Located in Downtown Walnut Creek, near BART A Loyal Supporter of the Contra Costa County Bar Association for Three Decades

2121 N. California Blvd., Suite 290, Walnut Creek, CA 94596 • dvrs2121@yahoo.com

40

DIABLO VALLEY REPORTING SERVICES

MARCH 2019

925.930.7388