Report 2009-109 Summary - January 2011
Sacramento and Marin Superior Courts:
Both Courts Need to Ensure That Family Court Appointees Have Necessary Qualifications, Improve Administrative Policies and Procedures, and Comply With Laws and Rules
Our review of the Sacramento County Superior Court and the Marin County Superior Court's use of court appointees in child custody disputes revealed the following:
- The Sacramento family court:
- Did not have training documents and other information that could demonstrate that its staff met the minimum qualifications and training requirements to perform mediations and evaluations.
- Does not always ensure that its evaluators satisfy the qualifications required by law.
- Has not adhered to the superior court's established employee appraisal policy.
- Lacks documentation demonstrating that the private mediators, private evaluators, and minor's counsel on its lists of professionals it deems qualified and some it has appointed have necessary qualifications.
- Inconsistently followed its established process for dealing with complaints about its mediators.
- The Marin family court:
- Could not demonstrate to us that all of the seven mediators on staff during the period we audited fulfilled the minimum qualifications initial training and continuing education to perform mediations.
- Could not demonstrate that the private evaluators it appointed to the five cases we reviewed always provided the court with declarations of their qualifications as required.
- Did not ensure that all minor's counsel appointed by the family court filed the required declarations of qualifications promptly.
- The Sacramento superior court:
- Inconsistently complies with state law and court rules for paying minor's counsel.
- Has a weak process for reviewing and approving minor's counsel invoices.
- Both superior courts:
- Did not log complaints about private mediators and evaluators received during the four-year period that we audited.
- Need to strengthen their policies for dealing with conflicts of interest.
- Did not ensure that their local rules include all the rules that are required.
RESULTS IN BRIEF
The Joint Legislative Audit Committee (audit committee) directed the Bureau of State Audits (bureau) to audit the California Family Court System with respect to the use of court appointees in child custody disputes. Specifically, the audit committee directed the bureau to review the Sacramento County Superior Court (Sacramento Superior Court) and the Marin County Superior Court (Marin Superior Court). Both superior courts have departments or courtrooms dedicated to issues governed by the California Family Code. Cases involving issues governed by the California Family Code are commonly referred to as matters of family law, and courtrooms handling those cases are generally referred to as family courts. Our audit found that both superior courts need to do more to ensure that the individuals who provide such services as mediation in cases before their family courts can demonstrate that they have the necessary qualifications and required training. In addition, the two superior courts need to follow their established processes for handling complaints, to improve their processes for payments related to counsel appointed to represent the interests of minors involved in family law cases, and to strengthen their procedures for dealing with conflicts of interest within the family courts.
One type of issue that a family court decides is child custody and visitation. A family court must order mediation in contested cases involving child custody and visitation, or those cases in which parents or others (referred to as parties) do not agree on the party with whom a child will live or on how much time the other party will spend with the child. California (State) law requires each family court to make a mediator available. The goals of mediation, as outlined in state law, are to reduce acrimony between the parties, to develop an agreement assuring the child close and continuing contact with the parties, and to settle the issue of visitation in a manner that is in the best interest of the child.
In addition to mediation, the family court has the discretion to appoint a child custody evaluator to conduct an evaluation in cases in which the family court determines that doing so is in the best interest of the child. The evaluator's report may be used as evidence and considered by the family court when it makes its custody and visitation order. The family court also has the discretion to appoint an attorney, referred to as minor's counsel, to represent the interest of the child in a custody or visitation proceeding when the family court determines that doing so is in the child's best interest.
The Sacramento Superior Court includes the Family and Children department (Sacramento family court). The staff at the Sacramento family court's Office of Family Court Services (Sacramento FCS) perform mediations as well as certain evaluations that the family court may order. Because they do so, the staff are subject to several minimum qualifications and training requirements specified in state law and the California Rules of Court (court rules). Covering the four years from April 1, 2006, through March 31, 2010, our audit found that any review of the qualifications of Sacramento FCS staff had limitations because the Sacramento FCS was missing training documents and other information that could demonstrate that its staff met the minimum qualifications and training requirements to perform mediations and evaluations. Seven of the FCS's 20 mediators appeared not to possess the minimum qualifications or training. For example, one FCS mediator appeared not to meet the minimum qualification of two years' experience in counseling, psychotherapy, or both at the time of hire. Moreover, the Sacramento FCS does not always comply with rules designed to establish that its evaluators are qualified. For example, each FCS evaluator must provide an annual declaration certifying his or her qualifications; this declaration is then submitted to the family court for a judge's signature. However, the FCS failed to submit the declarations to the family court for seven of the nine cases we reviewed. Finally, since 2008, the Sacramento FCS has not adhered to the Sacramento Superior Court's established employee appraisal policy intended to document employees' duties, evaluate their performance, and assist in employee development. The Sacramento family court, therefore, cannot be certain that its FCS staff members who perform mediations and evaluations possess the necessary skills or perform their duties at a satisfactory level to guide the parties through mediation effectively or to assess properly a family's condition and ensure that the outcome is in the best interests of the children.
The Sacramento family court also lacks such documentation as applications, training records, or declarations demonstrating that the private mediators, private evaluators, and minor's counsel on its lists of professionals it has deemed qualified and some it has appointed have necessary qualifications. Our legal counsel advised us that neither state law nor court rules require the family court to keep information on the qualifications of private mediators and private evaluators. However, the lack of documentation is troublesome because—during the four-year period covered by our audit—four of the nine private mediators we reviewed performed mediations for 22 contested child custody and visitation cases on behalf of the Sacramento FCS.
For the private evaluators, the Sacramento family court provided an application and the training records for only one of the five evaluators we selected for review. In examining these records, we found that the evaluator did not meet all of the training requirements. The court rules also require the use of a declaration certifying that an individual appointed as minor's counsel possesses the minimum qualifications and education, training, and experience requirements. Yet three of the five case files we reviewed did not contain minor's counsel declarations of qualifications. Consequently, the family court lacks assurance that these professionals have met the requisite minimum qualifications and undergone necessary training so that they can perform mediations, complete evaluations, or act as counsel for a child.
The Marin Superior Court includes the Family Court department (Marin family court). Unlike the Sacramento family court, the Marin family court uses the staff in its FCS to perform mediations only. Yet the Marin FCS could not demonstrate to us that all of its seven mediators on staff during the period we audited fulfilled the minimum qualifications, initial training, and continuing education requirements to perform mediations. For example, we found that for four of the seven mediators, the Marin FCS did not have documentation to show that these individuals completed the initial training. Before hiring these mediators, who were employed previously by other courts and were performing mediations, the Marin Superior Court did not verify that the mediators had met the initial training requirements. Consequently, the Marin family court cannot be certain that its FCS mediators are fully qualified and trained to perform mediation services for matters of family law. However, the former manager for the Marin FCS did adhere to the superior court's established personnel plan and policies by completing necessary appraisal reports. As a result, the reports assist the FCS mediators in developing as employees and in understanding the requirements of their jobs.
In addition, the Marin family court could not demonstrate that the private evaluators it appointed to the five cases we reviewed always provided the court with declarations of their qualifications within 10 days of their appointment to a case. Moreover, during the four-year period that we audited, not all of the minor's counsel that the family court appointed filed the required declarations of their qualifications promptly. The declaration is key for assuring the family court that the attorney is qualified to represent the interest of the minor. As a result, the Marin family court cannot be certain that the evaluators and minor's counsel it appoints are qualified to provide evaluations and legal services.
The Sacramento FCS also followed inconsistently its established process for dealing with complaints about its mediators. In addition, the former manager for the Marin FCS failed to document whether or not he consulted with the mediator during the investigation for each of the eight complaints we reviewed. As a result, the Sacramento family court cannot ensure that it reviews and responds to all complaints that it receives regarding its mediators, and the Marin family court cannot ensure that it thoroughly investigates the complaints it receives. Finally, because neither the Sacramento FCS nor the Marin FCS kept a log, the family courts could not assure us of the total number of complaints they received during the four-year period that we audited.
Both superior courts could also improve their processes for handling complaints about private mediators and evaluators. Because neither family court kept a log, the two courts could not assure us of the total number of complaints they received during the four-year period covered by the audit. The Marin family court asserted that it received one complaint about an evaluator during this period, and our review revealed that it did not follow the established process for this complaint. By not following the complaint process, the Marin family court exposes itself to criticism. We found that the Sacramento family court generally followed the established process in handling the five complaints against private mediators and evaluators it asserted were filed during the four-year period covered by the audit. However, the Sacramento Superior Court changed the local rules for 2010 to eliminate the peer review, a vital part of the complaint process, and it is unclear whether key steps that a peer review committee might perform will continue to occur under the new process.
The Sacramento family court also does not always use the standard form that the court rules require when ordering evaluations that the FCS staff will perform. Because the standard form outlines the parties' responsibility for paying the cost of the evaluation, the Sacramento family court cannot be sure that the parties are aware of and accountable for their share of these costs. The Sacramento Superior Court's accounting procedures related to billing for certain evaluations do not include important steps, such as verifying the proper allocation of costs between the parties. In addition, it has failed to collect almost two-thirds, or roughly $68,300, for the evaluations it billed for during the four-year period that we reviewed. Finally, the Sacramento Superior Court lacks a written policy and procedures for reviewing periodically its hourly rate for evaluations. However, the Sacramento Superior Court's executive officer stated that the superior court will develop procedures to assess the rate annually.
The Sacramento Superior Court does not consistently comply with state law and court rules for paying for minor's counsel. If a family court finds the parties unable to pay for minor's counsel, the superior court becomes the payer of last resort. For the four-year period covered by our audit, the Sacramento Superior Court reported that it paid minor's counsel more than $1 million. During our review of 29 of the 47 cases that the Sacramento Superior Court's accounting manager determined were instances in which the superior court paid minor's counsel costs, we found that for six cases the Sacramento family court had not made the necessary determination about the parties' ability to pay for minor's counsel. Therefore, without a record of the court's findings for these six cases, we could not determine what portion of the roughly $8,500 should have been borne by the parties.
Moreover, the Sacramento Superior Court's process for reviewing and approving minor's counsel invoices is weak, and as a result the court paid more than $175 in costs for three of five minor's counsel invoices we reviewed that are not reimbursable under the Sacramento Superior Court's policy. The Marin Superior Court could also improve its payments to minor's counsel by establishing a policy that outlines the costs it will reimburse.
Although it has a written policy to mitigate potential conflicts of interest, the Marin Superior Court could strengthen its policy by specifying that potential conflicts of interest be put in writing and by indicating how the court will track the final disposition of the potential conflict. For its part, the Sacramento FCS follows a practice for dealing with conflicts of interest that is different from its written conflict-of-interest policy. Finally, for the four-year period that we reviewed, the Sacramento and Marin superior courts did not ensure that their local rules include all the rules that are required.
To ensure that its FCS staff are qualified, the Sacramento superior and family courts should do the following:
- Take all reasonable steps to ensure that all staff performing mediations or evaluations meet the minimum qualifications and training requirements before assigning them to future mediations or evaluations. If necessary, and as soon as reasonably possible, the court should require the FCS mediators and evaluators to take additional education or training courses to compensate for the minimum qualifications and training requirements that were not met.
- Develop a policy to retain training completion records for at least as long as a Sacramento FCS mediator/evaluator is a court employee.
- Develop processes to ensure that all annual declarations of qualifications for evaluators are signed.
To make certain that it assists FCS staff in developing their skills and improving their job performance, the Sacramento FCS should adhere to the superior court's employee appraisal policy.
To ensure that its private mediators and evaluators meet the minimum qualifications and training requirements before appointment, the Sacramento family court should take these steps:
- Obtaining any missing applications and training records before appointing the mediators and evaluators whose materials are missing to future cases.
- Creating a record retention policy to retain the applications and training records related to private mediators and evaluators on its panel list for as long as they remain on the list.
The Sacramento family court should ensure that minor's counsel submit the required declaration about their qualifications, education, training, and experience.
The Marin superior and family courts should take all reasonable steps to ensure that the Marin FCS mediators meet all of the minimum qualifications and training requirements, including verifying the initial training of those FCS mediators hired who have worked at other superior courts.
The Marin family court should verify that the private evaluators and minor's counsel it appoints provide the court with their required declarations of qualifications and do so within the specified time frame.
To make certain that they track all complaints properly and review them promptly, the Sacramento and Marin FCS and family courts should follow their established complaint processes and keep a log of all complaints they receive.
To ensure that it provides transparency for the parties, the Sacramento Superior Court should develop a local rule that defines its process for receiving, reviewing, and resolving complaints against private mediators and evaluators.
To comply with court rules for ordering evaluations, the Sacramento family court should ensure that it is using the standard form and that the form includes an allocation of costs between the parties.
To strengthen its accounting procedures for the evaluations the FCS performs, the Sacramento Superior Court should do the following:
- Update its accounting procedures related to billing FCS evaluation costs, to include steps for verifying the proper allocation of costs between the parties.
- Update its process for collecting amounts it is owed for evaluations.
- Develop a policy for periodically reviewing the hourly rate it charges for evaluations.
To strengthen its process related to minor's counsel fees, the Sacramento family and superior courts should take these actions:
- Verifying that determinations regarding the parties' ability to pay are made in accordance with court rules and are properly reflected in the orders appointing the minor's counsel.
- Ensuring that accounting follows the appropriate superior court policy when reviewing minor's counsel costs and does not pay costs that are not allowed by the policy.
- Taking necessary steps to collect minor's counsel costs that accounting has paid improperly.
To make certain that it reimburses only appropriate and necessary minor's counsel costs, the Marin Superior Court should develop a policy outlining what costs it will reimburse.
To make its conflict-of-interest policy more effective, the Marin Superior Court should modify its policy to include documenting potential conflicts of interest in writing and tracking their final disposition.
To make its conflict-of-interest process more effective, the Sacramento family court should update its conflict-of-interest policy to mirror its practice.
The Sacramento and Marin superior courts should develop and implement processes to review the court rules periodically to ensure that their local rules reflect all required rules.
The Sacramento Superior Court stated that it was largely in agreement with the report's recommendations and has already begun the process of implementing the great majority of them. The court also stated that it is taking other recommendations under consideration, but some of them will likely prove difficult to implement due to a lack of resources.
The Marin Superior Court stated that it believed many of the findings and recommendations were focused primarily on ministerial tasks. Further, the court expressed an opinion that eight of the 13 recommendations are suggested changes to existing practices that are not governed by laws, rules of court, or any other directives. The court stated that, although it intends to implement the recommended changes and has either already implemented a new process or is engaged in developing a new rule or protocol, it questions whether some of the recommendations actually enhance internal controls and accountability.