Recent Family Law Cases (current through 12/20/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
County of Los Angeles v. Christopher W.
11/1/19, CA 2/1: 41 Cal.App.5th 827
DCSS file actions against biological F to establish paternity and collect support. Biological F joined third party as alleged presumed F pursuant to FC 7611(d). TCT found 7611(d) presumed F to be the parent based on his 8 Facebook posts in which he held himself out to be child’s father. TCT further found that although biological F was also a presumed F under FC 7555, biological F’s lack of a relationship with child was a sufficient basis to overcome that presumption. Reversed. Because presumptive F did not seek parental status of his own volition, and because rebuttal of the FC 7611(d) would not deprive child of a second parent, it was error for trial court to declare FC 7611(d) presumed F to be the parent. “… [C]lear and convincing evidence of Christopher’s biological paternity rebutted, as a matter of law, any presumption under section 7611, subdivision (d) that Colin is M.D.’s father.”
Marriage & Date of Separation
Marriage of Lee & Lin
10/30/19, CA 6: 41 Cal. App.5th 698
TCT found separation occurred when H moved from community residence, returned key to community residence to W and refused to give W key to apartment he had rented. W had asserted separation occurred 27 months later when divorce petition filed. Affirmed.
Child Custody & Visitation
Marriage of McKean
11/8/19, CA 4/3: 41 Cal. App. 5th 1083
M appeals TCT order granting sole legal and physical custody of two younger children to F sua sponte (and without a request from F) based on conclusion that M’s duties caring for older, severely disabled child rendered her incapable of maintaining joint legal and physical custody of two younger children. Reversed. M’s decision to leave one of the younger children in the care of a third party at a Las Vegas dance event due to the older daughter suffering a seizure was not “abandonment” as the trial court found. Ct.A lauded M’s efforts in meeting the needs of all three children and use of nurses to help in older daughter’s care. TCT also erred in failing to consider the sibling bond before separating the children per Heath and Williams.
Child Support/Default Judgements
County of Los Angeles Child Support Services Dept. V. Watson
11/26/19, CA 2/7: B291505
Default support judgment entered by TCT, but TCT sua sponte altered the commencement date in the proposed Judgment by three months, reducing the amount of the default judgment. Reversed. In the absence of evidence regarding whether the Respondent evaded service, the TCT should not limit the support arrearage to 90 days pursuant to FC 4009. The 90-day limitation was intended to prevent agencies from delaying service, and subsequent legislative attempts to modify that provision have been rejected. However, that rationale “does not apply to defaulting defendants who have not appeared in the action to assert their rights. For a defendant who does not respond to the complaint and chooses not to defend himself or herself, it does not matter how quickly the agency serves the complaint or how efficiently the court processes the support order.”
In Re Adam H.
12/6/19, CA 2/5: B298289
TCT reversed after applying the wrong statute when its dispositional order removed child from F’s custody. Because F was non-custodial parent, TCT should have evaluated placement with F under WIC 361.2 (not WIC 361(c)).
In Re I.I.
12/3/19, CA 2/1: B298184
F appeals jurisdictional finding under WIC 300. In a prior proceeding, M & F were found to have caused the death of another child; their parental rights to the twin of the deceased child were terminated in that proceeding. In the current action, “the court found there was no evidence that any of the children subject to the current petition had been abused or neglected or were, independent of the findings of the earlier petition, at current risk of abuse or neglect.” However, the TCT found it was required to sustain the current petition under WIC 300(f) as “the child’s parents or guardian caused the death of a child through abuse or neglect.” Affirmed. “Where, as here, there is uncontroverted evidence to support the allegation, the court’s decision to find a section 300, subdivision (f) allegation to be true, and establish jurisdiction is not discretionary; the court is required to assert jurisdiction. (§ 300.)”
In Re J.A.
12/6/19, CA 4/2: E072398
M’s appeal filed 16 months after jurisdiction/disposition hearing which removed children from M’s custody dismissed as untimely. CtA found A.O. and related cases (which excused lateness due to failure to advise of appellate rights) are distinguishable. “A.O. and it’s predecessors are readily distinguishable from this case in that the dependencies were still open when we allowed the parents to bring their belated challenges to previous orders.” “The purpose of appeal deadlines is to promote the finality of judicial decisions and provide security to the litigating parties. Nowhere is this purpose more crucial than in dependency cases, where the paramount consideration is child welfare.”
In Re J.R.
11/21/19, CA 3: C088052
M appeals termination of dependency jurisdiction, asserting exceptional circumstances existed as a result of failure of TCT ordered visitation to occur. Affirmed. M’s continued to have substance abuse issues during the period of time she was to have court ordered visitation – that was what caused the visitations not to occur, as opposed to obfuscation or non-compliance by other parties.
In Re K.T.
11/12/19, CA 4/2: 42 Cal.App.5th 15
Placement terminated due to allegations the placement family home did not qualify as a special health care needs foster home and the placement family had become non-communicative with the placement agency. On appeal by foster family, agency contending foster family did not have standing to appeal pursuant to In re Miguel E. (2004) 120 Cal.App.4th 521. Ct.A affirmed TCT findings and agreed that under Miguel E., generally “a person [with whom a child has previously been placed and] from whom a child has been removed under section 387 lacks standing to challenge the removal.” However, an exception exists “when that person is a relative … because under section 361.3, a relative has standing to appeal from a refusal to place a child with him or her (an argument that Miguel E. did not consider).”
In Re M.S.
10/30/19, CA 4/1: 41 Cal.App.5th 568
M appeals denial of reunification services at jurisdiction/disposition hearing based on finding M’s whereabouts were unknown [WIC 361.5(b)(1)]. Reversed and remanded with direction to provide M with 6 months of reunification services. CtA concluded that there was insufficient evidence to support finding as they had an address for M in Mexicali, where they had served M with notices which resulted in M’s appearance at a prior hearing.
In Re William M.W.
12/17/19, CA 1/1: A156489
Parents file motion to compel discovery in dependency action requesting copies of relevant discovery be provided to parents at no cost after Alameda County Social Services Agency refused to do so. TCT denied request finding parents had a right to inspect the records, but not obtain free copies of the records based on ruling it did not have authority to make such an order. Reversed and remanded. CtA found that although “no court rule, statute, or constitutional principle requires the discovery order sought by parents in this case[,] … circumstances could arise where an indigent parent’s meaningful access to the judicial process is impaired by discovery requirement….” In such cases, “the juvenile court has the authority to fix the time, place, and manner of discovery upon such terms and conditions as will serve the ends of justice and the purposes of the juvenile court law.”
Berrtoran v. Superior Court
10/29/19, CA 2/1: 41 Cal.App.5th 518
Writ granted after TCT granted motion in limine precluding party from introducing depositions taken in other actions at trial pursuant to CCP §1291. Relying on Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App. 3d 543, TCT found that a party has a “different motive in examining a witness at a deposition than at trial.” CtA held: “[W]e disagree with Wahlgren’s categorical bar to admitting deposition testimony under section 1291 based on the unexamined premise that a party’s motive to examine its witnesses at deposition always differs from its motive to do so at trial.”
Marriage of Pasco
11/25/19, CA3: C085721
H files request to terminate spousal support. Matter is set for a two-day long cause hearing. At the long cause hearing, TCT refused to take any evidence on the grounds the pleadings did not establish “material changes in circumstances at this time to warrant a hearing on modification/termination of spousal support.” Reversed. TCT’s reliance on trial brief (which is argument) and declarations not admitted into evidence was improper. Further, “[t]he parties were well past making an offer of proof to establish a prima facie showing of changed circumstances…” which would justify an evidentiary hearing. As set forth in FN4, “a stipulation to set the matter for trial is a tacit agreement that [the moving party has] made a prima facie showing of changed circumstances in his declarations.”