Recent Family Law Cases

In re Marriage of Belthius
01/31/2023, CA 2/2: B315673
https://www.courts.ca.gov/opinions/documents/B315673.PDF

In this case, the trial court erred in two respects when it signed husband’s QDRO. First, it erroneously used husband’s rank and salary at the time of the parties’ separation to calculate the community interest in his pension instead of his final rank and salary at the time of his retirement, as required by the time rule. This was error because “[u]nder the traditional time rule, the fraction of service during marriage divided by total service must be ‘multiplied by the final plan benefit to determine the community interest.’” and “because the community property interest at issue—the right to retirement benefits—’is a right to draw from a stream of income that begins to flow, and is defined, on retirement. [Citations.]’”

Second, the court erred by ordering that wife’s property interest in the pension reverted to husband if she predeceased him. This violated Family Code section 2610, which provides that “the court shall make whatever orders are necessary or appropriate to ensure that each party receives the party’s full community property share in any retirement plan, whether public or private, including all survivor and death benefits.”

Estate of Franco
01/30/2023, CA 1/3: A165840
https://www.courts.ca.gov/opinions/documents/A165840.PDF

First, the Court of Appeal concluded that the California Supreme Court’s decision in Estate of Cornelious (1984) 35 Cal.3d 461 remained good law and was not subsequently abrogated by the legislature. To wit, “a child of a marriage under the Family Code section 7540 marital presumption is barred from proving a parent-child relationship existed with a deceased third person for purposes of inheritance under intestate succession.”

Next, it found that the trial court erred because prior to applying the Family Code section 7540 marital presumption, the trial court was required to find that the relevant individuals “cohabited as husband and wife” at the time of the child’s “conception and birth.”

In re Marriage of D.S. & A.S.
01/23/2023, CA 6: H049337
https://www.courts.ca.gov/opinions/documents/H049337.PDF

In this case, the Court of Appeal reversed and remanded a domestic violence restraining order because the trial court “did not conduct a hearing as required both by Family Code section 6340 and principles of due process.”  It held that although a trial court “may issue a DVRO based solely on the affidavit or testimony of the person requesting the order, it may do [so] only ‘after notice and a hearing.’ (§§ 6300, 6340, subd. (a).)” Family Code section 6300 “does not obviate the requirement for a hearing at which the respondent is allowed to state his or her position on the issuance of the DVRO and refute the allegations in the DVRO request.”

The Court of Appeal noted that California appellate courts rarely review domestic violence orders because the litigants in DVRO cases are not represented by counsel over 90 percent of the time. This “high percentage of self-represented litigants places a special burden on bench officers hearing these restraining order requests.” These bench officers are “daily faced with the needs of self-represented litigants, the requirements of judicial neutrality, and the need for judicial efficiency.” Such “interests require delicate balancing, but allowance must be made for the status of the parties appearing before the court.” In contested restraining order hearings, the “trial court is tasked with protecting the fundamental due process rights of self-represented litigants both seeking a restraining order or defending against the request, even when they do not fully understand what those rights encompass.”

In this case, the trial court erred because after the appellant disputed the allegations and objected to the evidence as set forth in the restraining order application, “the court made no inquiry whatsoever as to the basis for his objections.” His “written response should have alerted the trial court that it had an obligation to ask questions designed to ascertain the truth of the allegations and the admissibility of the evidence…” Even though neither party asked the trial court to take any testimony, once the trial court was made aware that the “material facts were disputed, as was the legal question of whether any acts, if they occurred, constituted abuse,” it should have adduced testimony and probed the parties to determine their credibility sua sponte. It was not “possible that the court could reasonably have made any credibility determinations or resolved the material factual disputes based solely on the pleadings alone.” In so doing, the trial court “effectively deprived [appellant] of an opportunity to be heard on the material factual dispute and legal issue before the court.”

The Court of Appeal did note, however, that there “are instances in which a DVRO request is either unchallenged or the declaration in support of the request, if not materially disputed, so clearly describes abuse under the legal standard that a family court may issue a DVRO after a brief hearing that consists of minimal questioning of the petitioner and respondent confirming that the declarations are true…Such a hearing may well comport with due process based on the position of the parties regarding the DVRO request and the nature of the evidence in support of or refuting the restraining order request.”

Finally, the Court of Appeal rejected the appellant’s argument that the hearing “violated section 217 by not eliciting witness testimony.” This is because, “[a]lthough DVPA hearings are subject to section 217, neither party here sought to present live testimony.”

*Author’s note: In most family law cases where there is a due process violation, the judge is typically appealed for taking some action to truncate the lower court proceedings. This could include, for instance, a denial of a party’s request to allow cross-examination of a witness.

This case is different. The due process violation did not stem from an act of judicial malfeasance, but from nonfeasance. In other words, the trial court erred because it did not proactively take the steps necessary to ensure a fair hearing occurred.

In re T.R. et al.
1/27/23, CA 4/2: E079291
https://www.courts.ca.gov/opinions/documents/E079291.PDF

Father appealed the bypass of reunification services to him under Welfare & Institutions Code (W&I) §361.5(b)(6) (for severe physical abuse). Reunification services are not provided to parents in juvenile dependency cases (parents are “bypassed”) when the prospects for success are very low and the best interests of the child/ren would not be served by providing reunification services to the parent, based on various criteria. Dispositional orders generally are made by clear and convincing evidence, as are such ‘bypass’ provisions. In this case, evidence showed the physical abuse mostly from mother. In any event, W&I §361.5(k) requires the trial court to specify justifications for bypass under (b)(6): the physical abuse that opens the door, so to speak, to its application; and the basis for determining that it would not be in the best interests of the child/ren to provide reunification services. The trial judge failed to make those findings. The appellate court declined to make implied findings, following In re Albert T. (2006) 144 Cal.App.4th 207, especially in light of W&I §361.5(k). Nevertheless, the appellate court went on to assess that there was insufficient evidence to imply either required finding even were it permitted. Father also claimed inadequate inquiry into applicability the Indian Child Welfare Act (ICWA) which the appellate court found to be premature. Reversed and remanded for further determination related to potential bypass of father.

In re N.R.
1/27/23, CA 2/8: B322164
https://www.courts.ca.gov/opinions/documents/B322164.PDF

Mother appealed termination of her parental rights over N.R., pointing to her fitness as a parent evidenced by the return to her and dismissal of the younger ½ sibling’s case. The ½ sibling was 5 years younger and virtually nothing about N.R.’s needs or behavioral challenges were similar to those of the ½ sibling. The relationships between mother and both daughters were also very different. The appellate court affirmed finding that: due process supported detriment findings which kept N.R. from mother’s care leading up to the W&I §366.26 hearing (relying on Cynthia D. v. Superior Court (1993) 5 Cal.4th 242); there is no general parental fitness that applies to all children (relying on In re Cody W. (1994) 31 Cal.App.4th 221); and that no exception to adoption existed to justify retention of mother’s parental rights over N.R.

In re M.V.
1/27/23, CA 2/8: B315297
https://www.courts.ca.gov/opinions/documents/B315297.PDF

After ordering a bonding study that inadequately assessed the parent-child relationships, the trial court erroneously denied a request for a supplemental bonding study to address the initial study’s shortfalls. This was an abuse of discretion in this case where a 7-year old child’s visitation and relationship with her parents was significant. There was no dispute that parents had maintained regular visitation -the first prong set out by In re Caden C. (2021) 11 Cal.5th 614. The second prong, the quality of the parent-child relationship, was inadequately assessed by the original bonding study and found nowhere else in the record. The trial court was therefore deemed to be incapable of making the final analysis required by Caden C., namely whether the benefits of adoption would outweigh the negative results of the relationship’s severance. Remanded to obtain enough information about the parent-child relationship to make an informed analysis and decision.

In re M.C.
2/6/23, CA 1/2: A165424
https://www.courts.ca.gov/opinions/documents/A165424.PDF

Father is a truck driver who was out of state when the dependency case was initiated. His work schedule prevented him from regular parenting and visitation, as well as complying with Social Services requests that he participate in a parenting class, engage with a parent partner (local parent with a closed case from the dependency system to help parents with open cases), and drug test. The court took jurisdiction under (W&I) §300(b)(1), failure to protect -as to father, from mother’s substance abuse while parenting. The court also removed from father and ordered the services outlined above. The trial court abused its discretion because there was inadequate evidence that father, who was a prior noncustodial parent, posed a substantial risk of harm to the child were the child placed with him. There was no evidence that father had a substance abuse problem nor would fail to protect the minor from the mother in the future. The trial court also erred in ordering the father to drug test and participate in the parent partner program.

In re Jayden G.
2/14/23, CA 2/8: B321426
https://www.courts.ca.gov/opinions/documents/B321426.PDF

This case is an appeal of termination of mother’s parental rights. Mother alleges that the Department of Children and Family Services (DCFS) failed to locate and therefore notice father, and additionally failed to adequately inquire of extended family members of possible Native American heritage as required by the ICWA. The appellate court agreed with mother as to both issues. DCFS only looked for father twice and only in databases (and even then, apparently didn’t employ all available information), despite having other avenues -like the knowing the whereabouts of alleged paternal grandfather. Additionally, the DCFS made no inquiry of relatives about possible Native American ancestry as required by W&I §224.2(b). Reversed as to father and conditionally reversed as to mother (depending on outcome related to due diligence inquiry as to father and the proper ICWA inquiry).

D.S. v Sup. Ct.
2/15/23, CA 4/2: E079017
https://www.courts.ca.gov/opinions/documents/E079017.PDF

Mother filed an appeal of a summary denial of her W&I §388 petition that requested placement of her adopted dependent minor back in her care and custody. The petition itself raised only the question of a temporary placement (when nor with whom is not indicated). Therein no request relevant to the §388 petition ostensibly at issue nor one that was within the appellate court’s purview to address under normal circumstances was raised. The appellate court, following Olson v. Cory (1983) 35 Cal.3d 390, Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, and Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, chose to treat the defective appeal as a writ of mandate to prophylactically address an outstanding ICWA issue, claiming that the only available relatives were not blood relatives. The appellate court was not persuaded, as W&I §224.2 does not specify the requirement that relatives be blood-related and that according to Ehrenclou v. MacDonald (2004) 117 Cal.App.4th 364, adopted children are treated as natural children for all legal purposes*. CFS made no inquiry of relatives about possible Native American ancestry as required by W&I §224.2(b). Remanded for a proper ICWA inquiry that necessarily delays conclusion of a W&I §366.26 hearing. If the W&I §366.26 hearing has been completed and parental rights terminated, ICWA issues are deemed unresolved for purposes of appeal.

*Author’s note: Determination of tribal affiliation is within the exclusive purview of a Tribe, which may or may not include a biological factor.

In re A.A. et al.
2/16/23, CA 4/2: E079176
https://www.courts.ca.gov/opinions/documents/E079176.PDF

This case is an ICWA case, appealing termination of parental rights. It is not, contrary to a plethora of cases over the last several years, one where inquiry into the potential applicability of the ICWA was legally deficient. Rather, this case identified and involved the Jemez Pueblo Tribe, and the ICWA was initially applied during the case (though subsequently that qualification was terminated). The children were never eligible for enrollment, only a form of affiliation termed naturalized which did not, according to that Tribe, invoke application of the ICWA. Consequently, the termination of parental rights decision was affirmed.

In re L.B.
2/16/23, CA 1/1: A165001
https://www.courts.ca.gov/opinions/documents/A165001.PDF

This case is an appeal by mother of jurisdiction under W&I §300(b), alleging that subsection (1), which prevents a court from taking jurisdiction exclusively due to a parent’s failure to obtain custody orders, was not properly employed. This case came before the juvenile court because of exposure to domestic violence and mental health or substance abuse impairment leading to neglect. The trial court took jurisdiction, placed the minor with father, and dismissed the case with custody orders. The appellate court interpreted the W&I §300(1) provision related to failure to obtain custody orders as akin to proscriptions to taking jurisdiction solely because of poverty or homelessness. It affirmed, interpreting the statute to mean that when, as here, other reasons justify jurisdiction, that provision is inapplicable.