Family Law

Recent Family Law Cases

Recent Family Law Cases
[Opinions available at:  http://www.courts.ca.gov/opinions-slip.htm]

DEPENDENCY (current through 9/13/2021)
By:  John Nieman

In re M.M. v. D.V.

7/19/21, CA 4/1:  D077468
https://www.courts.ca.gov/opinions/documents/D077468.PDF

This case appeals the denial of a 3-parent finding pursuant to FC §7612(c) and the denial of a claim of Kelsey S. (Adoption of Kelsey S. (1992) 1 Cal.4th 816) status. * Child, mother, and the man who signed a Voluntary Declaration of Paternity at birth (fully believing he was the biological parent) lived together with the child from birth.  Subsequently it was discovered that appellant MM was the biological father.  After a brief time of MM visiting the child, mother decided it would not be healthy to continue to develop the relationship and cut MM off.  MM then filed to establish a parental relationship.  There was some discussion about the threshold applicability of 7612(c) since the statutory language suggests that a mere “claim” to parentage is sufficient.  The Court reiterated case law that interprets “a claim to parentage” to mean presumed status.  The question of the trial court’s denial of appellant’s request to be recognized as a Kelsey S. parent was rendered moot by the appellate court’s agreement with the trial court that, even if MM was a Kelsey S. presumed parent, his 7612(c) claim failed to demonstrate the requisite detriment since little relationship existed.

*This is a family law case, but parentage determinations in juvenile dependency cases follow the Family Code.

In re B.D., et al.

7/27/21, CA 4/1:  D078014
https://www.courts.ca.gov/opinions/documents/D078014.PDF

This case involves an examination of the factual basis to find that termination of parental rights would not be detrimental because of a strong parent-child relationship in light of In re Caden C. (2021) 11 Cal.5th 614.  Domestic violence, substance abuse, and significant neglect were the initial reasons for the dependency.  Parents were offered reunification services and failed to overcome their substance abuse addiction.  Parents maintained regular visitation.  In concluding that the parents failed to demonstrate the existence of a parental relationship, the trial court relied upon the parent’s lack of progress in their substance abuse treatment (and did not seem to consider other risk factors), and a failure to fulfill the daily caretaking role.

In re L.O.

7/29/21, CA 4/2:  E075921
https://www.courts.ca.gov/opinions/documents/E075921.PDF

The trial court took jurisdiction under W&I §300 subsections (b) and (d) and removed the child from parental custody.  Father appealed, challenging those findings.  Issues included exposure to adult sexual activity, physical abuse, and exposure to intimate partner violence.  The trial court’s taking of jurisdiction under §300(b) and the removal, as to father, were affirmed, but not the §300(d) finding as to the father.  The appellate court ruled that father’s inadvertent exposure of the minor to adult sexual activity did not constitute sexual abuse within the meaning of subsection 300(d), rather, that it was more akin to a failure to protect (300(b)).

In re I.S.

8/16/21, CA 1/2:  A161417
https://www.courts.ca.gov/opinions/documents/A161417.PDF

Judges are given broad latitude to conform juvenile dependency petitions to proof so long as the change does not vary so far from the original allegations as to prejudice a party in terms of notice and the ability to prepare defenses accordingly.  In this case §300(d) and (b)(1) petitions alleged risk due to inappropriate touching and mother’s failure to protect against said inappropriate touching.  These were conformed into emotional abuse and a failure by mother to investigate inappropriate texts from the alleged perpetrator.  The appellate court held that these changes went too far, such that mother had neither adequate notice nor the opportunity to prepare and execute her defense.

In re N.B.

8/18/21, CA 1/1:  A161425
https://www.courts.ca.gov/opinions/documents/A161425.PDF

After being in her grandmother’s and aunt’s care from about 1 year old to 12 years old, the minor was removed and a Welfare and Institutions Code §388 petition was ultimately filed and granted to terminate the guardianship.  One of the guardians appealed and challenged the use of a §388 versus a §387 petition.  The former generally is determined by a preponderance of evidence. The latter, requesting removal from a parent or guardian, is decided by clear and convincing evidence.  Arguably, when a §388 petition is used (under some circumstances) to effectuate a removal from a parent or guardian, the clear and convincing evidence standard should be applied.  The standard of proof applied in this case, however, was not mentioned in the opinion.  There was no mention of a distinction between a removal from a (parent or) guardian versus termination of a guardianship.  Be that as it may, California Rules of Court, rule 5.740 is indeed quite explicit that a §388 petition be employed when seeking to terminate a guardianship created in the Juvenile Court.  The implication of the rule, and this court’s interpretation of it, is that a guardianship created in the Juvenile Court is potentially treated differently than one created in Probate or Family Court.  Disagreeing with Jessica C. (2007) 151 Cal.App.4th 474, which indicated that a §387 petition was the appropriate mechanism to remove from a guardian, noting a change in the Rule since Jessica C. was published, the court affirmed that a §388 petition is the correct and indeed only proper vehicle to terminate a dependency guardianship.  Again, without specifying the import of removal from a long-term guardian or identifying the standard of proof applied, the appellate court emphasized that a thorough consideration of the circumstances was made before the petition to terminate the guardianship was decided; it was not a decision made lightly or without due consideration of the circumstances of the child.

In re N.F.

8/20/21, CA 4/2:  E076330
https://www.courts.ca.gov/opinions/documents/E076330.PDF

Mother filed a Welfare and Institutions Code §388 petition shortly before a §366.26 hearing wherein her parental rights were terminated.  The trial court denied Mother a hearing on her §388 petition claiming she had not evidenced a sufficient change of circumstances to justify a full hearing.  Essentially, that means that Mother’s §388 petition was insufficient on its face.  Mother appealed, alleging the denial was an abuse of the court’s discretion.  The appellate court affirmed, indicating that the denial was based upon mother’s claim of sobriety since July 2020, when she completed her most recent residential treatment program (though she was charged with possession thereafter in September).  Furthermore, though mother might have been gainfully employed, she presented evidence that her financial (and presumably housing) circumstances were unstable. Such circumstances undermined a claim of best interests to return the minor to Mother whilst, in comparison, the foster-adoptive placement was, by all evidence, stable.

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