Recent Family Law Cases (current through 8/26/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
S.C. v. G.S.
8/9/19, CA 6: H045093
F sought to set aside arrears which accrued while he was incarcerated. TCT invoked equitable authority under FC 290 and reduced arrears. On appeal by DCSS, reversed. The operative order was made in 1995, before legislation in 2010 and 2015 suspended support for incarcerated parents. As F did not seek a reduction of support on his release, TCT lacked authority to reduce arrears.
In re Nicole S.
8/23/19, CA1/4: A154443
Attorney fees are not recoverable in a dependency proceeding pursuant to CCP 1021.5 (private attorney general doctrine).
In re J.P.
7/26/19, CA6: H046491
Dependency court order granting visitation between child and M’s ex-boyfriend (and F with M to a second child) affirmed. TCT had authority to order visitation with a non-parent under WIC 362(a) over parent’s objection. That section gives the juvenile court broad authority to “make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child….” TCT interpreted that broad language to include ability to order non-parent visitation.
In re E.W.
7/29/19, CA 2/8: B295083
In dependency action, child removed from M and placed in F’s home, with an exit order granting F sole legal and physical custody, with no visitation to M. M appeals, claiming that trial court did not have jurisdiction to make orders in the case under the UCCJEA. Affirmed. Although child lived primarily with M in South Carolina during the school year, he visited F during breaks pursuant to an Orange County custody order. There was no other order by any other state and California has existing and continuing jurisdiction. The UCCJEA “home state” is determined at the time an initial custody order is made, not when a subsequent dependency action is filed.
In re C.M.
7/31/19, CA 2/5: B291817
Juvenile court finding that FC 3044 not applicable in dependency proceedings affirmed. “[D]ue to the separate and distinct purposes of the juvenile and family courts, many Family Code provisions do not apply in dependency proceedings.” (In re J.T., supra, 228 Cal.App.4th at p. 961.) Although no prior published decision addressed this issue, appellant did not produce any legal arguments as to why the court “should depart from the long line of precedent that the Civil and Family Codes are not applicable in dependency cases unless expressly stated.”
In re A.W.
8/12/19, CA 3: C086160
TCT order terminating parental rights and freeing minor for adoption conditionally reversed and remanded based on failure to comply with notice requirements of ICWA. CtA rejected arguments by County that notice requirement can only be challenged by a petition for invalidation and that such a petition can only be brought by parents of an Indian child (not a potential Indian child). “[H]aving reason to know the minor may be an Indian child, the juvenile court ordered the County to provide notice to the [tribe] in accordance with the ICWA.” CtA then found notice given was inadequate as County gave notice of only one hearing, and not subsequent hearings.
In re L.C.
8/12/19, CA 2/1: B294490
“In this appeal, we hold that evidence of a legal guardian’s occasional methamphetamine use outside the legal guardian’s home and while the child was in the care of another adult in the home does not support dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (b). No substantial evidence showed that the legal guardian abused methamphetamine, and no substantial evidence showed that the child was at risk of serious physical harm. We therefore reverse the juvenile court’s jurisdictional order.”
In re A.E.
8/21/19, CA 4/2: E070578
Children appeal dispositional order granting reunification services to their parents after TCT found that reunification services should not be bypassed under WIC 361.5(b)(5) & (6) as “reunification was in the best interest of the children, services would likely prevent reabuse, and it would be detrimental not to provide them[,]” thus permitting reunification under WIC 361.5(c). Reversed. As to 5 of the children, “In sum, the record contains no evidence that reunification services could lead to adequate protection of the children and hence no evidence that reunification services would be in the children’s best interest, given Father’s and Mother’s ongoing insistence that all of the physical abuse allegations were false.” As to the 6th child, the TCT was required to prohibit reunification in the absence of competent testimony that services are likely to present reabuse or continued neglect of the child. Under WIC 361.5(c)(3), “the term ‘testimony’ refers to in-court oral statements of live witness, not to other forms of evidence.” The record contained no competent testimony to support the finding, requiring reversal of the TCT.
In re J.F.
8/26/19, CA4/2: E072301
F files notice of appeal expressly stating he was appealing order terminating his parental rights only. During appeal, F also sought to challenge dependency court order denying him reunification services with sons pursuant to WIC 388. CtA held it “cannot liberally construe it to embrace the omitted order denying the section 388 petition,” and therefore lacked jurisdiction over the WIC 388 issue. As F presented “no reasoned argument why the juvenile court erred by terminating his parental rights, father has waived his challenge to the sole order properly before us.” Judgment denying WIC 388 petition therefore affirmed.
Marriage of Sahafzadeh-Taeb & Taeb
8/26/19, CA 1/1: A152178
Sanctions imposed under CCP 128.5 affirmed as to attorney but reversed as to party after attorney failed to appear for trial. Amendments to CCP 128.5 made after San Diegans for Open Government v. City of San Diego permit imposition of sanctions under that section under a subjective bad faith test only, not the objective test applied in San Diegans.