Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
DEPENDENCY (current through 1/17/2022)
By: John Nieman
In re Benjamin M. et al.
10/22/21, CA 4/2: E077137
This is also an ICWA case in which failure to obtain readily available information about the possible application of the ICWA resulted in a conditional reversal. The agency failed to inquire of the father’s ancestry that might require application or further inquiry into the applicability of the ICWA. The record reflected that father’s family was accessible. The court rejected the idea that it should not disturb the trial court’s decision, absent some evidence, that the answer to the inquiry might reveal the requisite ancestry. It reasoned that by not asking at all, a determination about the possible applicability of the ICWA and the potential tribal rights simply could not be made. In this case, as the mother had no ICWA-qualifying ancestry enabling her to make a claim, it left the father’s ancestry (and potential tribal rights) extant and yet unrevealed. Thus, leaving the case open to worse damage from delay than by making the proper inquiry going forward. It disagreed with cases that require that showing (some indicia that further inquiry will implicate the ICWA) to justify a remand to complete the investigation and possible noticing requirements, such as In re AC (2021) 65 Cal.App.5th 1060.
In re J.D.
10/27/21, CA 1/2: A161973
This case was covered in last a previous edition of the Family Law News Monthly. This modification did not change the decision. The modification: emphasizes the importance of evaluating the quality of the parent-child relationship in court reports preceding the 366.26 hearing; recognizes the parent’s burden to show the bond exception; clarifies that the reference to the possibility of guardianship makes no demands upon either the agency nor trial court upon remand, but was intended to point out that some consideration of the parental bond exception could have been provided by the agency, given the significant relationship between mother and minor.
In re Solomon B. at al.
10/29/21, CA 2/1: B311250
Mother fled to Texas to escape the domestic violence perpetrated against her by father. She had no reason to believe that the children would be abused or neglected in father’s care and custody. Upon hearing of the dependency case circumstances, she immediately returned to California and requested custody. The trial court took jurisdiction and found that placement with her would be detrimental; primarily, because she abandoned them by fleeing to Texas (among other reasons). Finding this reasoning inadequate and the required risk level for removal unsupported by the record, the appellate court reversed.
In re D.M. et al.
11/1/21, CA 2/8: B312479
This is another case remanded to comply with the analysis required under In re Caden C. (2021) 11 Cal.5th 614 for termination of parental rights.* In this case, the trial court focused on the extent to which the father fulfilled the role of parent instead of the quality of their relationships. Furthermore, the reports were inadequate to assess the quality of the father’s relationships with his children nor, therefore, the potential results of terminating them.
*Author’s note: Eventually the trial courts will catch up with Caden C.’s standards and/or publications will be less likely as the probability of novel situations related to the implementation of Caden C. decreases.
In re Josiah T.
11/8/21, CA 2/8: B311213
This is also an ICWA case wherein failure to adequately investigate the possible application of the ICWA, subsequently report, and follow noticing requirements resulted in a conditional reversal. The agency failed to initially inquire of the father’s ancestry that might require notice. Even after receiving information warranting notice and further inquiry, social services did not follow up as required. These errors were compounded by a failure to properly report the inquiry results to the trial court, which might have resulted in more timely notice and further inquiry – upon direction from the trial court.
In re R.F. et al.
11/10/21, CA 4/2: E076526
After taking jurisdiction based on allegations only about the father, the trial court placed the children with the mother on Family Maintenance. Then, in December at a “non-appearance review hearing” utilizing a local non-appearance hearing “approval packet” methodology in mid-December of 2020, a minute order indicated that the case was dismissed with custody to the mother, issuing custody and visitation orders accordingly. The order was not filed until mid-January 2021. The only notice indicated in the record was something from the minute order about email to counsel for the parents 5 days before the so-called non-appearance hearing. Notice to appellant father being defective, the appellate court reversed and remanded the case. The appellate court declined to apply a structural error analysis to the situation. Under the harmless error analysis proscription of People v. Watson (1956) 46 Cal.2d 818, it was found to prejudice the father. The court went on to find it also prejudicial under the Chapman (Chapman v. California (1967) 386 U.S. 18) test.
In re S.G. et al.
11/15/21, CA 2/1: B307988
This case involves an appeal of a denied restraining order against the father to protect the mother. Since the case was dismissed post restraining order denial, and the mother did not appeal the dismissal, it raises a question of the appealability of the restraining order decision. As to this latter question, the appellate court reasoned that since a remand could afford mother appropriate relief, it was appealable independent of the dismissal. It disagreed with cases that found dismissal renders the juvenile court without the power to remedy prior appeals if the dismissal was not also appealed – citing to CCP §43 and §906. Further, specifying that the remand requires only limited jurisdiction to remedy whatever error was committed. The appellate court opined that the restraining order decision would not impact the orders issued upon dismissal. The Appellate court affirmed the trial court’s denial to issue a permanent restraining order. This opinion includes a dissent.
In re Scarlett V.
12/8/21, CA 2/7: B311089
This is a Special Immigrant Juvenile status (SIJS) case. After the Juvenile Court found 7-year-old Honduras-born Scarlett to be a dependent, due to exposure to domestic violence, it denied her request for SIJS under Code of Civil Procedure §155. The fact that the minor’s history/circumstances qualified her for SIJS was undisputed. The appellate court reversed because the trial court ruled that granting the petition was discretionary. The court adopted the standard of evidence expressed in O.C. v. Superior Court (2019) 44 Cal.App.5th 76, that evidence submitted be taken at its face value (in the absence of contradictory evidence). O.C.’s “substantial evidence” standard differs from Guardianship of S.H.R. (2021) 68 Cal.App.5th 563, which essentially found that the trial court must make independent factual findings to grant such a request.
Adoption of S.S. et al., Minors*
12/10/21, CA 1/3: A162155
This case involves a trial court’s denial to consider modifying an adoption petition with a postadoption contact agreement (PACA) more than 3 years after the adoption was finalized. Following an adoption out of Juvenile Dependency court, grandparents came to believe that their capacity to raise the children was inadequate. They sought a new adoptive home with the intention to remain in the children’s lives as grandparents. Consequently, a PACA was developed and signed by the parties but, for reasons unspecified in the opinion, was not submitted for evaluation and a decision with the adoption petition (as arguably required). Visitation ensued postadoption as planned, but relations deteriorated, and the adoptive parents abrogated the agreement (albeit the agreement was ostensibly unofficial). The trial court ruled that it was unable to rectify the situation. The appellate court reversed and ruled that the trial court had the power as a court in equity to provide the needed relief, namely, to conduct proceedings to allow the requisite evaluation and possible modification of the original adoption petition to include the PACA.
*This case is about postadoption contact agreements which are available in adoptions of juvenile dependent minors under W&I §366.26(a).
In re Emily L.
12/21/21, CA 2/8: B309567
Allegations of abuse and neglect must demonstrate sufficient risk at the time a court takes jurisdiction. In this case, the initial abuse and neglect (the minor engaging in risky behaviors that mother was unable to control peaceably) was completely mitigated by the time the trial court took jurisdiction. The court cited mere speculation about future risk and punishment of a parent (that is outside the juvenile court’s role) in explaining the basis for its decision to find insufficient evidence at the jurisdiction decision. The petition was ordered dismissed upon remand.
In re L.A.-O et al.
12/27/21, CA 4/2: E077196
This is another case that ran afoul of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). This case relied excessively upon the lack of the parents’ filling a “parental role” in deciding to terminate parental rights and, by extension, that the parent-child bond exception was inapplicable. This case correctly points out that “parental role” is simply not found in Caden C.; using that phrase does nothing to indicate what is or is not important to the juvenile court to consider. It found that reliance on earlier reports must be formalized in some way in the trial court to allow an appellate court to consider them in their evaluation of the record on appeal. The case was remanded in order to clarify that the trial court properly adheres to Caden C.
In re A.V.
1/12/22, CA 3: C092928
The mother failed to appear for the jurisdiction hearing, and the court went forward, despite a request for trial by mother’s counsel. Mother’s child was ill and, the day before, she scheduled a doctor’s appointment for the child that conflicted with the hearing. The mother apprised the social worker of this plan the day before the hearing. Although present at the hearing, the social worker said nothing about her knowledge of the mother’s circumstances. The mother left a message for her attorney the day before, but counsel apparently was not aware of it before the hearing. Subsequently, the mother filed a motion to set aside the jurisdictional findings because of her absence. The trial court denied the request, even though the moving papers contained all relevant information about the difficulties that lead to the mother’s absence from the hearing. The appellate court reversed, finding that the court abused its discretion by denying the set-aside motion. In particular, the appellate court pointed to the trial court’s assertion that the mother decided to take the child to a conflicting appointment, instead of the emergency room (the idea being that the mother, therefore, could have made it to the hearing). The appellate court also factored in the difficulties of caring for a sick child during the COVID-19 pandemic.
In re Eli B. et al.
1/14/22, CA 1/2: A162116
This case affirmed a termination of parental rights ruling of the trial court. For the beneficial parental bond exception claimed to apply, a parent must show regular visitation, a positive parent-child attachment, and that the benefits of adoption are countervailed by the damage of terminating the relationship with a parent. It found that the father failed to establish that he regularly visited, that the mother failed to demonstrate a positive attachment, and that the harm of termination of parental rights would not counterbalance the benefit of permanency through adoption.