Recent Dependency Law Cases

A.H. v. Superior Court
03/17/2023, CA 4/3: G061648
https://www.courts.ca.gov/opinions/documents/G061648.PDF

See summary under FAMILY LAW

In re N.M. et al.
3/2/23, CA 2/1 B315559
https://www.courts.ca.gov/opinions/documents/B315559.PDF

Father appealed the granting of sole physical custody upon dismissal. Jurisdiction was originally based upon mother’s driving under the influence of alcohol with a child in the car. Father and mother lived apart then, mother lived with the maternal grandmother and the children. Father’s work schedule prevented him from being the primary caretaker of the children. Upon removal from mother, children were placed in father’s custody (presumably by default as there was no removal order from father), though they continued to live primarily with the maternal grandmother. Both parents were ordered to do a case plan. Mother did hers but father didn’t do his. Upon dismissal the court denied physical custody to father based upon his noncompliance, characterizing it as rewarding father (for his noncompliance with the case plan). The reversal was based on an abuse of the trial court’s discretion that it was in the best interests of the children to grant mother sole physical custody. The appellate court merely reversed the order granting mother sole physical custody and left in place all other orders, including a mediated division of time the children spent with the parents.

In re Matthew.M.
3/6/23, CA 2/7: B319258
https://www.courts.ca.gov/opinions/documents/B319258.PDF

Mother appealed denial of her Welfare and Institutions Code (W&I) §388 petition that requested a reversal of a previous order permitting her child who resided in congregate care to be vaccinated for COVID-19. Mother had previously stated an unfounded religious objection and raised no better objection in her W&I §388 petition. The child’s physician approved the vaccination and mother presented no credible evidence of risk of harm from the vaccine. The child did not object to being vaccinated. The appellate court affirmed the trial court’s decision to permit the vaccination to go forward by finding that the mother’s W&I §388 petition failed to show new evidence and (even that aside) also failed to request an order that was in the child’s best interests.

In re J.M. et al.
3/10/23, CA 2/4: B313754
https://www.courts.ca.gov/opinions/documents/B313754.PDF

Father appealed from a judgement granting mother sole physical custody on dismissal after a return to both parents with Family Maintenance (where parents maintain actual physical custody). On appeal, father’s contention was that the trial court lacked authority to effectively remove the children from his care by making exit orders based on a mere best interest determination as spelled out in case law interpreting W&I §364 and W&I §362.4.

The basis of the original jurisdiction was exposure to domestic violence, and mother was doing demonstrably better than father in compliance with procedures established to normalize and optimize relationships with both parents at the time of the final hearing. Presumably this difference was the factual basis relied upon by the trial court in making its exit orders granting mother sole physical custody. The appellate court went to some pains to differentiate the due process requirements delineated at disposition (i.e. clear and convincing evidence of a risk of harm per W&I §361) to justify removal from a parent’s custody, from custody orders made on dismissal. It affirmed that interpretation and denied father’s appeal.*

*Author’s Note: This interpretation, that did not need to be addressed in In re N.M. et al. (reviewed above), might prove controversial amongst dependency practitioners. Santosky v Kramer, 455 U.S. 745 (1982), roots parental rights deeply within the constitution, requiring significant due process to justify their termination (that case dealt primarily with termination of parental rights, but is cited variously to characterize the constitutional basis of parental rights). Perhaps it is true that a trial court, at the point of terminating jurisdiction, has afforded considerable due process to parents; that due process cumulatively justifies a mere best interest standard for a decision that might significantly impair exercise of fundamental parental rights at dismissal.