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Court of Appeal:
Due Process Violated by Unrecorded Interview of Minor
Opinion Says Judge’s Failure to Take Measures to Memorialize In-Chambers Conversation Undermined Rights of Father in Domestic Violence Restraining Order Hearing
By a MetNews Staff Writer
Div. One of the First District Court of Appeal held yesterday that the failure of a judge to memorialize her private, in-chambers conversation with a 12-year old girl during a domestic violence restraining order hearing being litigated by the child’s parents violated the due process rights of the father, who was restrained following the proceedings.
The court also held that the fact that the order expired on Nov. 30, 2023 does not render the question moot due to a statutory five-year presumption against granting custody to parents against whom a court has made a finding of domestic violence under Family Code §3044.
Appealing the domestic violence restraining order (“DVRO”) was Jose Cardona, who shares a daughter with Karina Soto. In October 2022, Soto filed a request for the DVRO on behalf of herself and the couple’s daughter following an incident of alleged domestic violence that occurred earlier in the week by Cardona against his wife, who is not a party to the litigation.
According to Soto, Cardona beat his wife and slapped his daughter on Oct. 9, 2022, resulting in his arrest and the transportation of his wife to a local emergency room.
During the contested hearing on Nov. 29, 2022, Cardona admitted that he had “one bad altercation” with his wife when he was “blacked-out” drunk but said that he could not remember the incident and he would never hit his daughter. He averred that he had been sober since that night, was taking anger management classes, and had turned in all firearms to the authorities.
Incident Not Disputed
Then-Contra Costa Superior Court Judge Judith S. Craddick (now retired) acknowledged that no one disputes that there was an incident between Cardona and his wife that “distressed” the minor but said that the remainder of the reported behavior was based on “he said/she said” testimony. Soto volunteered that her daughter could testify the following day.
On Nov. 30, 2022, Craddick and the daughter had an in-chambers discussion outside the presence of the court reporter and both parents. After the conversation, the judge granted the one-year DVRO and named Soto as the sole legal and physical custodian of the daughter.
Craddick denied Cardona visitation and said that “you seem to think everything is just perfect, sir, believe me[,] things are not perfect from your daughter’s standpoint.”
Presiding Justice Jim Humes authored the opinion reversing the order. Justice Kathleen Banke and former Presiding Justice Peter J. Siggins (now retired), sitting by assignment, joined in the opinion.
Due Process Rights
The justice pointed out that due process requires a meaningful hearing with an opportunity to probe the evidence and cross-examine witnesses. He opined that “these…rights were heightened here because of this proceeding’s implications for Cardona’s parental rights, including section 3044’s rebuttable presumption that granting custody of a child to a parent against whom a DVRO has been issued is against the child’s best interest.”
He acknowledged that courts are authorized to obtain testimony from a minor outside of the parents’ presence in dependency and visitation contexts but pointed out that courts are required to make “some record” of the testimony “which will in turn be shared with the parent.”
Humes recognized Craddick’s “evident concern for daughter’s well-being,” but remarked:
“[T]he trial court made no provision to enable Cardona to respond to daughter’s testimony. A court reporter was present transcribing the hearing at issue, so it appears the in-chambers interview could have also been reported. Though Cardona did not have counsel who could have observed daughter’s interview for him, the court could have summarized daughter’s testimony for the record. Nor did the court make any findings that could conceivably support its refusal to reveal anything daughter said. Moreover, the failure to make any record of daughter’s testimony left the evidentiary basis for the DVRO essentially unreviewable on appeal….Under all these circumstances, we conclude that the court’s procedure for obtaining daughter’s testimony violated due process.”
Prejudice Finding
He explained that the failure to accord a party due process is generally reversible per se but reasoned that reversal is warranted in the present case even under a prejudice standard. Humes wrote:
“The trial court’s comments in granting the DVRO request make clear that its ruling rested at least in part on daughter’s testimony. Cardona may not have challenged daughter’s testimony about the October 9 incident, since he admittedly did not remember what happened. But it is possible that the trial court elicited information from daughter about other matters to which Cardona could have responded, such as Soto’s claim that he made daughter carry a gun. In short, because Cardona was deprived of the opportunity to respond to evidence affecting the court’s ruling, reversal is required.”
Humes added:
“Had the DVRO not yet expired, the appropriate remedy would be to remand for a new hearing. As far as we are aware, however, Soto has not sought to renew the order. Although we must reverse the order because it was based on testimony obtained in violation of Cardona’s right to due process, we emphasize that our opinion does not preclude future reliance on the other evidence of domestic violence presented. We express no opinion on what effect, if any, that evidence might have in further proceedings, including custody determinations.”
The case is Cardona v. Soto, 2024 S.O.S. 3251.
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