Family Law

Recent Family Law Cases

FAMILY LAW (current through 3/20/2023)
By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

In re Marriage of Cohen

In re Marriage of Cohen
2/16/2023, certified for publication on 3/20/2023, CA 4/3: G060697

  • The Motion to Dismiss in the Trial Court

In this case, Husband’s request to modify child support and spousal support was dismissed under the disentitlement doctrine. This part of the order was affirmed.

The Court of Appeal first addressed the fact that the trial court granted a second motion to dismiss, but not the first. Husband argued that res judicata principles should have required the denial of the second motion. The Court of Appeal rejected this argument because the trial court denied the first motion without prejudice. The Court cited to Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, which held that “[t]he term ‘without prejudice,‘ in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.”

The Court of Appeal next addressed Husband’s argument that “the trial court erred in denying his request for a full evidentiary hearing under Family Code section 217.” First, the Court of Appeal determined that “[t]he record arguably shows [Husband] forfeited his right to live testimony [under Family Code section 271]” because in his written opposition, he “did not request the right to testify or cross-examine [Wife],” no “witness list was submitted,” and because Husband “neither referenced Family Code section 217 nor requested that [he] be allowed to testify…Rather, counsel made a general request to present evidence about [Husband’s] inability to pay.”

The Court of Appeal determined that, even if Husband properly preserved his right to seek live testimony on appeal, the trial court nevertheless “made a sufficient finding of good cause to refuse live testimony” because it was implied that the trial court determined that material facts were not in controversy and that live testimony was not necessary for the court to assess the parties’ credibility. Even if there was error in this regard, it would have been harmless because the evidence before the Court showed that Husband “could have, even partially, paid his support obligations but intentionally failed to do so until he faced contempt charges or sought the court’s assistance.” It was not “reasonably probable” that live testimony about Husband’s “inability to pay would have undermined the court’s conclusion based on the declaration and the documentary evidence.”

Husband argued next that the “trial court improperly relied on [Wife’s] declaration and [Income and Expense Declaration] because those documents were never expressly admitted.” This argument was rejected on forfeiture grounds. Initially, it was rejected because it was first raised in the reply brief. Second, Husband “argued about the interpretation of [the Income and Expense Declaration] and “never objected to the admission” of the documents.

On the merits, the Court of Appeal concluded that the trial court did not abuse its discretion and the order was supported by substantial evidence. The case history showed that Husband “had substantial arrearages which he paid to receive a trial”  even after his support payments were lowered, Husband “was immediately delinquent and did not pay the obligations in full until immediately before a contempt hearing,” and because Husband “had income to make at least partial payments on his support obligations” Accordingly, “the evidence supports an inference that [Husband] intentionally did not comply with his support obligations unless forced to do so by contempt hearings or when he sought judicial aid and assistance to reduce the support  obligations.”

  • The Motion to Dismiss in the Court of Appeals

The Court also addressed a motion to dismiss the appeal under the disentitlement doctrine. The Court declined to dismiss the appeal because there “was no evidence that while the appeal [was] pending, [Father had] disobeyed the challenged order” and because this was “the first time [Father had] been denied his right to judicial assistance based on his “repeated failures to comply with court-ordered obligations.”

  • The Order Conditioning Any Future Modification Request on Husband Being Current on Support

The trial court also “conditioned the filing of any future modification requests on Richard being current on his support obligations.” That part of the order was reversed.

The Court of Appeals was unaware of any “case supporting conditioning future RFO’s on payments of support obligations.” Wife’s reliance on “In re Marriage of Fink (1979) 25 Cal.3d 877 is misplaced because that case involved the conditioning of a new trial on payment of attorney fees.” (Emphasis mine.) There was “no such similar precedent for RFO’s to modify support obligations.”

Further, the disentitlement doctrine did not support the trial court’s order. Since the disentitlement doctrine “must be based on the equities of the individual case…[a] blanket dismissal of an RFO before considering any changes in circumstances, such as substantial compliance with support obligations, would be inequitable, even with the record showing a history of Richard being in arrears…such dismissal must be on an individual motion-by-motion basis.”

*Author’s note: Dismissals based on the disentitlement doctrine are recognized to be extraordinary remedies. The facts in this case support this relief not only because Husband violated the order, but because he so clearly could have complied with it. I would not request dismissal based on the disentitlement doctrine unless both these criteria are met. Having said that, I cannot imagine a scenario in the Court of Appeal where I would not request dismissal based on the disentitlement doctrine if a support order was violated and it was clear that the support payor could, but chose not to, comply.

You can even use the disentitlement doctrine for matters that occurred solely after the appealed order is entered. Once, I was able to show in the Court of Appeal that, subsequent to the entry of the order, the appealing party not only refused to follow the support order but had millions in liquid assets and had provided a recent Income and Expense Declaration showing that his actual month-to-month expenses were extensive. The Court of Appeal noted that it could have dismissed the appeal based on the disentitlement doctrine, but chose to address the merits instead (where the judgment as affirmed anyway).

Bassett Unified School District v. Superior Court

Bassett Unified School District v. Superior Court
03/14/2023, CA 2/5: B323538

This “writ proceeding involves a statutory challenge for cause filed against a trial court judge presiding over a wrongful termination lawsuit.”

Following a multimillion dollar verdict in favor of the plaintiff, the judge who presided over the trial court case, Judge Bowick, received a text message from fellow judge Byrdsong that stated “$25 Million!! [Confetti emoji], [confetti emoji].” Judge Bowick did not respond to the message. Judge Byrdsong had “previously informed Judge Bowick that attorneys from his former firm were trying the case.” Further, “[o]n one occasion [Judge Byrdsong] had greeted Ross’s counsel in Judge Bowick’s courtroom during a break in the proceedings and later brought Judge Bowick a food item. On another, Judge Byrdsong had briefly observed, from the audience, the jury selection in Judge Bowick’s courtroom, until Judge Bowick had a note passed to him asking him to leave.” This was disclosed to the parties following the receipt of the postverdict text message noted above.” Judge Bowick also disclosed that he asked Judge Byrdsong to have no further contact with him regarding the case, and that this course of events did not impact his decisionmaking in the case. The defendants moved to disqualify Judge Bowick. In a lengthy order, the motion was denied and the Court of Appealed denied the defendant’s writ petition.

The Court of Appeals summarized the relevant law:

Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) provides that a judge shall be disqualified if, “[f]or any reason: [¶] [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” This standard is “ ‘fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable [person] would entertain doubts concerning the judge’s impartiality, disqualification is mandated…“a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” ’ ” (Jolie v. Superior Court of Los Angeles County (2021) 66 Cal.App.5th 1025, 1039-1040.)

On the other hand, “‘Judicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified.” ‘ (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170.)”

Addressing the merits, the Court of Appeal first addressed the argument that “a reasonable observer would doubt Judge Bowick’s objectivity because she changed her ruling on [an] evidentiary issue after meeting with Judge Byrdsong privately in her chambers.”

First, the Court of Appeal noted there was conflicting evidence on whether there was a meeting in chambers at all, and thus the Court of Appeal was required to assume there was no such meeting under the doctrine of implied findings.

Next, it noted that the evidence did not support that the change in the ruling was because of Judge Byrdsong. The Court of Appeal described this argument as “unpersuasive cause-and-effect analysis” that “is both speculative and based on an oversimplification of the proceedings painted with a cherry-picked timeline.” Accordingly, “no disinterested observer would reasonably question Judge Bowick’s impartiality because of any change in her ruling.”

Generally, the Court of Appeals concluded that “an objective person would [not] reasonably entertain a doubt about Judge Bowick’s impartiality because of Judge Byrdsong’s actions.” Judge Bowick had, essentially, acted properly at all times and did what an impartial judge was expected to do under the circumstances (e.g. asking Judge Byrdsong to leave, telling him to not to contact her further regarding the case, etc.).

Ruegg & Ellsworth v. City of Berkeley

Ruegg & Ellsworth v. City of Berkeley
03/14/2023, CA 1/2: A164749

The sole issue “on this appeal is whether the trial court exceeded the scope of [the Court of Appeal’s] remand instructions.”

  • Background on the Prior Appeal

In 2018, the City “denied an application by [Ruegg] for ministerial approval of a mixed-use development.” Ruegg challenged the denial with a writ of mandate in the trial court, alleging that the denial violated the Housing Accountability Act (“HAA”) and Government Code section 65913.4 (two separate causes of action). The trial court denied the writ of mandate, but the Court of Appeal disagreed and directed the writ petition to be granted. The Court of Appeal specifically noted that its conclusion that the City “failed to comply with section 65913.4 [made] it unnecessary to address [appellant’s] additional contention that the City’s denial violated the HAA.” On remand, Ruegg argued that in addition to granting the writ petition, the trial court should also “decide the outstanding HAA issues.” The City opposed the request. The trial court “believed it would ‘most closely comply with the court of appeal’s instructions’ by issuing a writ of mandate on the first cause of action (violation of § 65913.4) and bifurcating the remainder of the causes of action.”

The trial court subsequently granted the writ petition and later concluded that the City’s denial of the permit application also violated the HAA.

  • The Instant Writ Petition

The Court of Appeals began with the governing law:

“ ‘A reviewing court has authority to “affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” (Code Civ. Proc., § 43.) The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.’ (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 . . . ; accord, Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [‘the terms of the remittitur define the trial court’s jurisdiction to act’].) ‘The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.’ (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655 [(Hampton)].)” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 7 Cal.App.4th 851, 859 (Ayyad).) ‘The issues the trial court may address in the remand proceedings are therefore limited to those specified in the reviewing court’s directions, and if the reviewing court does not direct the trial court to take a particular action or make a particular determination, the trial court is not authorized to do so. [Citations.]” (Id. at pp. 859–860.) “Any material variance from the directions is unauthorized and void.” (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982 (Butler); In re Candace P. (1994) 24 Cal.App.4th 1128, 1131.) We review de novo a claim that the trial court did not follow the directions contained in the dispositional language of our previous opinion. (Ayyad, supra, 210 Cal.App.4th at p. 859.) We look to the wording of our directions, read in conjunction with the opinion as a whole. (Ibid.; Bach v. County of Butte (1989) 215 Cal.App.3d 294, 302 (Bach).)

In this case, the Court of Appeal concluded that the trial court’s orders did not exceed its jurisdiction because the “neither the trial court nor [the Court of Appeal] had addressed the HAA issues, and determining them would not change the [result ordered], [but would] only inform the relief Ruegg would be entitled to under the writ [it] directed the trial court to issue.” The cases cited by the City were distinguishable because:

All these cases involved obvious departures from remand instructions: introduction of a new theory of recovery, not previously presented to the trial or appellate court, by the party against whom the appellate court ordered judgment to be entered (Hampton); reconsideration of a prior trial court order so as to allow a trial when the remand instructions called for entry of a default judgment (Butler); request for an evidentiary hearing on changed circumstances after the appellate court ordered specific injunctive relief (Bach); relitigation of the entire case on a remand for retrial solely on specified damages issues (Ayyad).

“While the trial court did not need to decide the HAA issues in order to compel the City to issue a permit under section 65913.4, deciding those issues was necessary to fully resolve whether Ruegg was entitled to the relief sought by its petition – that is, the extent of the relief afforded by granting the writ petition.”

Critically, the Court of Appeal “did not hold that ‘further litigation of the HAA claims is not necessary’ or that ‘consideration of the HAA claims is unnecessary to the outcome.’ [They said it was ‘unnecessary for us to address’ the HAA claims.” (Emphasis in original.)

The Court of Appeal also held that Ruegg did not forfeit its HAA claims by failing to seek rehearing in the initial opinion. The Court of Appeal disagreed, again noting that the opinion “decided only the section 65913.4 issues.” Finally, the Court of Appeal rejected the City’s mootness argument, noting that a violation of the HAA, provides additional relief, including attorney fees, that a mere 65913.4 violation does not provide.

*Author’s note: This case includes a good discussion of the rules on remand after reversal. I consider it helpful because remands in family law cases can often be tricky.

People v. Carly Sue Edwards

People v. Carly Sue Edwards
03/7/2023, CA 3: C094784

This case addresses the propriety of sanction orders under under Code of Civil Procedure section 177.5 which provides, “A judicial officer shall have the power to impose . . . sanctions, not to exceed fifteen hundred dollars ($1,500), . . . for any violation of a lawful court order by a person, done without good cause or substantial justification. . . . [¶] . . . An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” The Court of Appeal reversed the orders to the extent they did not contain “detail explaining the trial court’s findings that DSH lacked good cause or substantial justification…” and to the extent that they did not satisfy section 177.5’s requirement to “recite in detail the conduct or circumstances justifying” sanctions.

Finally, the Court of Appeal concluded that Code of Civil Procedure section 177.5 should be interpreted to allow “sanctions of up to $1,500 for each separate violation of a court order.”

*Author’s note: Since this case clarifies that the $1,500 limit in Code of Civil Procedure section 177.5 is per order violation, not per motion, this statute could be a powerful tool to curb violations of court orders in family law cases.

Johnston-Rossi v. Rossi

Johnston-Rossi v. Rossi
01/30/2023, CA 2/8, Certified for Publication on 03/01/2023: B318522

In this appeal of a post-judgment order, the trial court reversed an order requiring the children to participate in the Family Bridges reunification program with Father.

First, the Court of Appeal quite nicely summarized the relevant law on custody and visitation where, as here, there was a prior final judicial custody determination:

The overarching concern of California’s child custody and visitation law is the best interest of the child.  (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro).)  Where, as here, there is a final custody determination in place, a postjudgment request to modify custody requires the moving party to demonstrate not just the best interest of the child but changed circumstances.  (Id. at p. 256.)  “Under the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification.”  (Ibid., italics added.) 

Once a final custody determination has been made, “the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.”  (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32–33.)  The changed circumstances rule “ ‘fosters the dual goals of judicial economy and protecting stable custody arrangements.’ ”  (Montenegro, supra, 26 Cal.4th at p. 256; accord, In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955–956 & In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089.)

Unlike postjudgment modifications of custody orders, postjudgment modifications of visitation and the parenting plan are governed by the statutory best interest of the child test, and the changed circumstance rule does not apply.  (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1077; accord, In re Marriage of Furie (2017) 16 Cal.App.5th 816, 827 [the appropriate standard for ordering a modification in parenting authority that does not rise to the level of a change in custody is the best interests test].)  Relevant factors for the court to consider in determining the best interest of the child include the health, safety and welfare of the child, any history of physical or substance abuse by either parent, and the nature and amount of contact with each parent.  (Fam. Code, § 3011, subd. (a).) 

The Court of Appeal held that[t]he practical effect of the [Family Bridges order] was to remove B.R. and D.R. from mother’s custody for at least 90 days.”

Since this was a change in custody, the trial court errantly “ordered this modification without any evidence of changed circumstances.” Further, “[n]othing in the record [supported] the court’s finding that this significant disruption to the children’s established living arrangement with mother was in their best interest.  The order [required] the children, for a minimum period of three months, to be moved out of their home and either moved across the country to Los Angeles if the Family Bridges program can be completed during a school break, or moved into a new home in New York with father until the program can be completed there during the school year.  The children would not be allowed any contact with mother during this disruptive period.”   

The trial court further erred by “denying mother’s request for an evidentiary hearing.” In so doing, the trial court “prevented mother from offering evidence relevant to the propriety of ordering the children to participate in a 90-day Family Bridges program during which they would be deprived of all contact with mother.”       

*Author’s note: The thrust of this opinion is that, where there is a prior final judicial custody determination, taking the children away from the custodial parent for a period of 90 days is a change of custody. As this was a change of custody, it is well established that Mother would be entitled to an evidentiary hearing prior to the Court making any such order. I note that the Court of Appeal seemed to imply that if a similar type of order were made on Father’s vacation time, only lasting a week, this would have been acceptable.

The most important question raised by this opinion, to me, is how would the analysis differ if there were no prior final judicial custody determination? Would the order have been permissible under those circumstances? Further, absent a prior final judicial custody determination, would such an order have been permissible without an evidentiary hearing?

This case also demonstrates the proper way to challenge a change of custody order. The Court of Appeal, almost in passing, mentions that it “granted mother’s writ of supersedeas, staying the order pending resolution of this appeal.” When challenging an appealable custody order, counsel should always explore a writ of supersedeas. It is probably the least difficult writ relief to achieve because the Court of Appeal does not have to address the merits and because, with a single sentence, it can preserve the status quo.

People v. Kenney

People v. Kenney
02/22/2023, CA 4/1: D079227

In this case a temporary DVRO hearing was issued ex parte. Prior to being served with the restraining order, the Court of Appeal noted the following:

Sheriff’s deputies yelled through a locked bedroom door, “There’s a restraining order on file, Christopher” and “You’re not allowed to be here.”  Christopher’s terse reply, “Break my fucking door down, dude.  This is my fucking house” was prescient.  Deputies forced the door open and after a scuffle arrested him. 

Christopher Kenney “was not charged with violating the temporary DVRO, but instead with resisting an executive officer.  ([Penal Code] § 69.)”

Penal Code section 836, in relevant part, provides:

The person against whom a protective order has been issued shall be deemed to have notice of the order if the victim presents to the officer proof of service of the order, the officer confirms with the appropriate authorities that a true copy of the proof of service is on file, or the person against whom the protective order was issued was present at the protective order hearing or was informed by a peace officer of the contents of the protective order.

According to the Court of Appeal, “The fundamental issue on appeal is whether deputies acted lawfully, which in turn depends on whether they gave Kenney sufficient notice of the restraining order’s ‘contents.’ “ They affirmed, concluding that since the deputies informed Kenney of the material terms of the restraining order, substantial evidence supported the order.

*Author’s note: This case stands for the important proposition that one does not necessarily have to be served with a restraining order before facing consequences of refusal to follow it.

A.H. v. Superior Court

03/17/2023, CA 4/3: G061648

In this dependency case addressing the UCCJEA, the parents of the minor child argued that “All orders must be reversed for lack of subject matter jurisdiction because Texas, not California, was the children’s home state and substantial evidence did not show that the Texas court declined to exercise jurisdiction.” The Court of Appeal affirmed.

The parents first argued that the “juvenile court’s finding of temporary emergency jurisdiction did not comply with the UCCJEA.” The Court of Appeal held, however, that the “extensive physical abuse,” which was visible in pictures, met the substantive requirement of Family Code section 3424.

The parents next argued that the trial court “did not hold an evidentiary hearing regarding emergency jurisdiction, nor did the court specify the duration of its temporary order.” The Court of Appeal disagreed, finding that the “detention hearing substantially complied with the procedural requirements of the UCCJEA, namely Family Code section 3425, which requires “notice and an opportunity to be heard…must be given” before a “child custody determination is made under [the UCCJEA].” This was because at the hearing, “the parents never asked to present evidence in addition to what had been received by the juvenile court before their attorneys argued their respective positions.” Further, while the trial court did not explicitly specify the duration of its temporary order, as required by Family Code section 3424, “it can reasonably be inferred that the emergency jurisdictional order was to remain in effect until either: (a) the next hearing date regarding the UCCJEA, or (b) the date of the jurisdiction hearing.” Even if there was procedural error, the Court of Appeal would have found it harmless “given the children’s physical injuries, the parents’ cruelty to their children, and the parents’ attempts to shield their crimes from the police.”

The parents next claimed that “The juvenile court’s September 9, 2020 finding of subject matter jurisdiction [was] not supported by substantial evidence.” As noted above, Family Code section 3424 requires a Court that does otherwise have jurisdiction under the UCCJEA to exercise emergency jurisdiction for as long as necessary for the other state to take over. In this case, the Texas judge said he would waive jurisdiction until the parents return to Houston.” This “equivocation was not legally tenable” because “only one state government can have subject matter jurisdiction of a family law matter at any point in time.” Accordingly, it was appropriate for the trial court to assert nonemergency subject matter jurisdiction under Family Code section 3421(a)(3), which allows the trial court to assume jurisdiction if the actual state with jurisdiction determines that California is the more appropriate forum.

Finally, the parents claimed that even if California did have jurisdiction, it was “without jurisdiction once it learned of the Texas custody order and the parents were residing in Texas.” However, once the Court exercised jurisdiction under 3421(a)(3), it had continuing and exclusive jurisdiction under Family Code section 3422.

DEPENDENCY (current through 3/20/2023)
By:  John Nieman

A.H. v. Superior Court

A.H. v. Superior Court
03/17/2023, CA 4/3: G061648

See summary under FAMILY LAW

In re N.M. et al.

In re N.M. et al.
3/2/23, CA 2/1 B315559

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.

In re Matthew.M.
3/6/23, CA 2/7: B319258

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.

In re J.M. et al.
3/10/23, CA 2/4: B313754

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.

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