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Monday, March 01, 1999
Copyright © Las Vegas Review-Journal
Court gives woman visitation with son
The removal of Family Court Judge Fran Fine brings about the rehearing of a custody case and the granting of a mother's wish.
By Carri Geer
Review-Journal
A former Las Vegas woman -- a key witness in the disciplinary proceedings last year that led to a Family Court judge's removal from office -- saw her 10-year-old son last week for the first time in almost two years.
"I just kept telling him that I loved him, and he said he knew that," Laura Kinnard said after the brief reunion at a downtown Las Vegas hotel.
The Nevada Judicial Discipline Commission heard emotional testimony last year from Kinnard before removing Judge Fran Fine from the bench. In fact, much of the testimony during the public hearing in September focused on Fine's handling of the Kinnard case and her decision to deny the mother contact with her son.
Kinnard obtained permission to see her son Tuesday after a new attorney, who represents her for free, brought the case before a new judge. The hearing was closed, but the Review-Journal obtained a court videotape of the proceedings.
"For whatever reason, Judge Fine put this burden on you for no contact, and I think that at this point in time, I need to clean that up," said Judge Dianne Steel, who presides over the case.
In October, the commission ruled that Fine had committed three of the four ethics violations with which it had charged her, including one violation that involved the Kinnard case. The panel voted later that month to punish her with removal.
In the Kinnard case, the commission found that Fine had appointed her first cousin, Faith Garfield of New Mexico, to serve as a mediator without disclosing their relationship. In June 1996, Fine ordered the parties to show why they should not be held in contempt of court for failing to pay Garfield for her services.
According to the commission's decision, evidence presented to support a fourth, unsubstantiated ethics charge showed that Fine engaged in an ex parte telephone conference with Garfield and New Mexico psychologist Marc Caplan, and Fine also had an ex parte meeting in her chambers with Dr. Elizabeth Richitt, a Las Vegas psychologist who was called as a witness at a hearing scheduled by the judge in the Kinnard case.
Ex parte conversations fail to involve both sides of a case. The Nevada Code of Judicial Conduct prohibits judges from initiating, permitting or considering ex parte communications except in certain circumstances.
The commission ruled that the evidence failed to establish clearly and convincingly that "substantive matters" were discussed during the two ex parte conferences listed in the fourth charge.
"Although not charged in the formal statement of charges, two additional instances of deplorable ex parte conduct were clearly and convincingly established by the evidence," the decision further stated, referring to other conduct in the Kinnard case.
Fine granted a divorce to Laura and Robert Kinnard in June 1996. The couple had reached a settlement agreement as part of their divorce that gave Laura Kinnard custody of their son, Ryan.
Laura Kinnard, who now lives in Santa Fe, N.M., testified tearfully in September about Fine's decision to transfer custody of the couple's son to Robert Kinnard in December 1996.
At the commission hearing, the woman said she last saw her son in April 1997 and had been allowed no communication with the boy since a telephone conversation in June 1997. She said she received a letter from Richitt in July 1997 telling her she was prohibited from having any further contact with her son.
During Fine's testimony before the commission, the judge recalled receiving a telephone call from Caplan late one night in November 1996 at her home.
Although Fine at first testified that the two discussed nothing of a substantive nature, the commission's decision stated, "her later testimony clearly established that at least one discussion of substantive matters occurred."
Fine testified that she had told Caplan to put his concerns in a letter but did not read the letter until she had a conference call with the attorneys. According to the commission's decision, the evidence indicated she had reviewed the letter before the call.
The decision stated that those two ex parte contacts with Caplan -- his call and his letter -- prompted Fine to schedule the matter for a hearing. According to the document, she directed her staff to call Richitt and request her presence at the hearing.
"Her office informed Dr. Richitt that the judge was considering changing custody from the mother to the father," the decision stated. "The judge did in fact change the custody as her staff had indicated to Dr. Richitt."
According to the commission's decision, evidence also established that Fine had received a copy of a letter from Richitt addressed to Laura Kinnard.
Based upon statements in the letter, according to the commission's decision, Fine entered an order in October 1997 without notifying the parties or their attorneys. The order prohibited Laura Kinnard from having any contact with her son without a therapist present to monitor their conversations.
"The court thus significantly altered important parental rights of the mother without notice or a hearing," the commission ruled.
According to its decision, the commission did not accept Fine's rationalization that she was acting in the best interest of the child, that the orders entered were only temporary and that her actions were taken because of emergency situations.
"Dr. Caplan's letter specifically states that the facts set forth in his letter did not constitute an emergency, yet the judge, without a motion being filed, set a hearing and changed custody of the minor child," the panel wrote.
Robert Kinnard's attorney, William Croft, argued at Tuesday's hearing that Fine had reasons for making the decisions she made in the case.
Steel said Laura Kinnard has had many months to reflect on any inappropriate conduct that might have contributed to her losing contact with her son.
The judge said she first wanted the parents to return to mediation with the goal of reuniting mother and son. She said she wanted the parties to agree on some regular visitation for the two, and she ordered Robert Kinnard to bring his son to lunch that afternoon with Laura Kinnard.
"I don't know what people were thinking when they said you can't see your child unless there's a psychologist sitting in the room," Steel said. "That's like 200 bucks an hour. I'm not trying to second-guess Judge Fine. It's just not the tack I would have taken."
Croft said his client could have sought to terminate Laura Kinnard's parental rights based on her abandonment of the boy. He said the woman has made no attempt to contact her son during the past 18 months.
"Ms. Kinnard wouldn't be here if it wasn't for the judiciary commission hearings," the attorney argued. "She didn't do anything for a year. She comes in and she testifies at the judiciary commission because somebody asked her to, and then all of a sudden she sees an inroad to get back at dad again."
Attorney Susan Quig Terry, who decided to represent Laura Kinnard for free after learning about her plight, filed a motion in November for custody and/or specified visitation. In the motion and a later supplement, the attorney cited the discipline commission's rulings regarding Fine's conduct in the case.
At Tuesday's hearing, Terry said her client still owes her former attorney, Marshal Willick, about $40,000. Terry said Laura Kinnard could not afford to pay him to fight Fine's decisions and the woman could not afford to pay a psychologist to monitor her visitation with Ryan.
"You don't have to be rich to be able to see your children, and that burden should never have been placed on her to begin with," Terry argued. "And she shouldn't be penalized for it now."
Steel concluded the hearing by ordering Laura Kinnard to begin paying the minimum requirement of $100 a month toward child support. She also ordered the parties to return to court in April to report on the progress of their mediation. The judge said she then might schedule an evidentiary hearing on the custody issue.
Another custody case in which the discipline commission found that Fine had engaged in misconduct, Greisen vs. Greisen, also has returned to court since the judge's removal.
Judge Gloria Sanchez retried the case late last year and in January changed custody of the two daughters from the father to the mother.
Willick, who filed the complaint that led to Fine's removal, said a third case in which the commission found that Fine had engaged in misconduct -- McMonigle vs. McMonigle -- was resolved in December 1994 when the Nevada Supreme Court returned custody of the daughter to her mother.
The commission found that Fine had participated in ex parte communications in both the Greisen and the McMonigle cases. Willick represented the mothers in both of those cases.
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LAURA KINNARD
BOB KINNARD
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