Tate et al v. County of Kern et al

Filing 8

ORDER DENYING Plaintiff's Petition for Appointment of Maryn Tate as Guardian ad Litem re 2 , signed by Magistrate Judge Jennifer L. Thurston on 2/12/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALLEN TATE, et al.,
Plaintiffs,

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v.

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COUNTY OF KERN, et al.,
Defendants.

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Case No.: 1:14-cv-00159 - LJO - JLT
ORDER DENYING PLAINTIFF’S PETITION FOR
APPOINTMENT OF MARYN TATE AS
GUARDIAN AD LITEM
(Doc. 14)

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Plaintiff Maryn Tate seeks to be appointed as guardian ad litem for minor plaintiffs D.T., K.T.,

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and M.T. in this action. (Doc. 2.) For the following reasons, the petition for appointment of a

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guardian ad litem is GRANTED.

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I.

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Procedural History
Plaintiffs Allen Tate, Maryn Tate, D.T., K.T., and M.T. initiated this civil rights action by filing

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a complaint on February 5, 2014. (Doc. 1.) Plaintiffs allege Susan Rutledge came to their home on

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January 31, 2012, “as part of a “Voluntary Plan” the parents had entered into with CPS in 2011,

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wherein a concern about the hygiene of the home and general clutter were to be addressed by keeping

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the house cleaner and more orderly, disposing of some debris in garbage cans around the home, and the

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parents engaging in some counseling and/or parenting classes.” (Id. at 9.) Ms. Rutledge “picked up

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baby M.T. (age 4 months) from his crib and felt that he was very thin and underweight,” and Mrs. Tate

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explained she had been having difficulty with breastfeeding M.T. and was attempting to supplement his
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diet with formula. (Id.) Ms. Rutledge made an appointment to return the following day with a public

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health nurse employed by the County. (Id.)

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On February 1, 2012, Ms. Rutledge returned with Monique Moreland, who “did some general

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physical and developmental assessment the child.” (Doc. 1 at 10.) Mrs. Tate attempted to feed M.T.

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with a bottle, but he refused the formula when offered both by Ms. Moreland and his mother. (Id.)

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However, Mrs. Tate was able to breastfeed M.T. “adequately without incident.” (Id.) However, Ms.

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Moreland was concerned, and asked that M.T. be taken to the Emergency Room. (Id.) According to

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Plaintiffs, both Ms. Rutledge and Ms. Moreland observed D.T. and K.T. “appeared to be health and

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well fed.” (Id.)
Plaintiffs allege that “[a]t the hospital M.T. was deemed to be undernourished, but healthy by all

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other measures of physical assessment.” (Doc. 1 at 11.) Specifically, Plaintiffs report that “[a]ll but

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one of M.T.’s blood level readings for blood products and chemicals in the child’s blood which are

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routinely assessed by medical professionals when assessing the well-being of a child, or an adult, were

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within normal range.” (Id.) In addition, M.T.’s “vital signs were within normal range and remained so

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during the entire hospital stay.” (Id.) However, Plaintiff’s report that a “nasogastric tube was inserted

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in [M.T.’s] nose shortly after admission, and he was fed formula directly into the stomach.” (Id.) Ms.

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Rutledge described M.T.’s condition as “near death.” (Id.)
According to Plaintiffs, “M.T. was ready for discharge from the hospital” on February 8, 2012,

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but Ms. Rutledge “told Maryn that she could not remove the child from the hospital, and that she had

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taken custody of M.T.” (Doc. 1 at 12.) In addition, D.T. and K.T. were removed from their parents’

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home on February 8, 2012. (Id.) The juvenile court ordered the removal of the children at an initial

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detention hearing on February 14, 2012. (Id. at 13.)

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Based upon the foregoing, Plaintiffs allege the defendants are liable for violations of their civil

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rights arising under the First, Fourth and Fourteenth Amendments to the Constitution of the United

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States. (Id. at 14-16.)

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II.

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Legal Standard
Pursuant to the Federal Rules of Civil Procedure, “[a] minor . . . who does not have a duly

appointed representative may sue by a next friend or by a guardian ad litem.” Fed. R. Civ. P. 17(c)(2).
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In addition, a court “must appoint a guardian ad litem - or issue another appropriate order - to protect a

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minor or incompetent person who is unrepresented in an action.” Id. The capacity of an individual to

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sue is determined “by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b). Here, the law of

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the state of California governs the ability of D.T., K.T., and M.T. to bring suit. Pursuant to California

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law, a minor may bring suit as long as a guardian conducts the proceedings. Cal. Fam. Code §§ 6502,

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6601. A guardian ad litem may be appointed to represent the minors’ interests. Cal. Code Civ. P. §

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372(a).

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III.

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Discussion
In determining whether to appoint a particular guardian ad litem, the Court must consider

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whether the minor and the guardian have divergent interests. Cal. Code Civ. P. § 372(b)(1). “When

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there is a potential conflict between a perceived parental responsibility and an obligation to assist the

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court in achieving a just and speedy determination of the action, a court has the right to select a

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guardian ad litem who is not a parent if that guardian would best protect the child’s interests.” Williams

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v. Super. Ct., 147 Cal. App. 4th 36, 38 (Cal. Ct. App. 4th 2007) (internal quotation marks and citation

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omitted). “[I]f the parent has an actual or potential conflict of interest with his child, the parent has no

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right to control or influence the child’s litigation.” Id. at 50.

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D.T., K.T. and M.T. are each under five years old, and as such are minor under California law.

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See Cal. Fam. Code § 6502. Therefore, as minors, their ability to bring suit is contingent upon

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appointment of a guardian ad litem by the Court.

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Upon review of the Complaint, it does not appear there are direct conflicts of interests in this

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action. However, it does not appear that appointment of Maryn Tate as the guardian ad litem for D.T.,

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K.T. and M.T. is appropriate. A guardian ad litem “may make tactical and even fundamental decisions

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affecting the litigation but always with the interest of the guardian’s charge in mind.” In re M.F., 161

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Cal. App. 4th 673, 682 (2008); see also In re Josiah Z., 36 Cal.4th 664, 679 (2005) (explaining a

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guardian ad litem should “represent and protect the rights and best interests of the child”).

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Based upon the allegations in the complaint (doc. 1 at 14 ¶ 49), Plaintiffs admit that a California

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court has ordered the children removed from the Tates’ custody which had to be as a result of a

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determination that they were not acting in the children’s best interests. See Cal. Calif & Instit. Code §§
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300 et seq. Plaintiffs do not allege that this order has been overturned or that any court has determined

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that the Tates have demonstrated an ability to act in their children’s best interest and this Court has no

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authority to sit in review of the Superior Court’s action. See Rooker v. Fidelity Trust Co., 263 U.S. 413

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(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Doe v. Mann, 451 F.3d 1038, 1041-42

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(9th Cir. 2005).

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Based upon the facts alleged, the Court cannot find that Maryn Tate has adequately

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demonstrated that she would further the children’s best interests if appointed their guardian ad litem.

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IV.

Conclusion and Order

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The decision whether to appoint a guardian ad litem is “normally left to the sound discretion of

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the trial court.” United States v. 30.64 Acres of Land, etc., 795 F.2d 796, 804 (9th Cir. 1986). Here, it

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does not appear Maryn Tate would be an appropriate guardian ad litem for the minor plaintiffs.

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Therefore, IT IS HEREBY ORDERED: The petition for appointment of Maryn Tate as the guardian

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ad litem for D.T., K.T. and M.T. is DENIED.

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IT IS SO ORDERED.
Dated:

February 12, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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