Recent Family Law Cases

FAMILY LAW (current through 8/23/2023)

By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

In re Marriage of Hearn

08/10/2023 CA 1/2: A162932

https://www.courts.ca.gov/opinions/documents/A162932.PDF

In this case, the Court of Appeal affirmed an attorney fee and costs order after Husband argued that 1) the trial court erred in denying him an evidentiary hearing; 2) the trial court did not consider the required factors as set forth in Family Code section 2030 et. seq; and 3) the trial court’s ultimate order of $25,000 was not supported by substantial evidence.

The Disentitlement Doctrine

First, the Court of Appeal declined to dismiss the appeal under the disentitlement doctrine, which allows a reviewing court to dismiss an appeal by a party that refuses to comply with a lower court order. In this case, Husband was ordered to make monthly attorney fee and costs payments. He admitted he did not make the payments, but stated he was unable to do so because he was unemployed and argued that he did not actually violate the court’s order, which provided that interest accrues at the statutory rate on unpaid balances. Since Wife’s argument that Husband violated an order was “undercut by her contention that the order established a ‘reasonable payment schedule’ that ‘[allowed] Husband to defer payment and merely pay statutory interest,’ the Court did not conclude that Husband “willfully obstructed or failed to comply with the trial court orders.”

Husband’s Request for an Evidentiary Hearing

Next, the Court of Appeal discussed the trial court’s denial of an evidentiary hearing. It noted that “the right to live testimony under section 217 may be forfeited” and, arguably, Husband “forfeited his right to live testimony by not asking to testify or to cross-examine [Wife], or anyone else, in the trial court.” Further, when he objected to declarations, he objected solely on the ground that they raised new legal issues and “asked that if the declarations were to be considered he be allowed to provide a further response.”

He also did not ask for live testimony at the hearing. In “asking for a continuance followed by [a later] evidentiary hearing, [Husband] stated that he could provide ‘communications’ and ‘documentation’ to refute [Wife’s] purported implication that he was pursuing litigation to harass her.  And he stated that he wanted further documentation from Jennie about her finances, while conceding that he had not requested the information in connection with the pending request for order.”  Husband argued that Swain compelled an evidentiary hearing upon his request, but the Court of Appeal disagreed. Unlike in Swain, Husband “did not seek to exclude [Wife’s evidence] on the ground that he needed to cross-examine her.  Instead, he sought to exclude them unless the court would also consider additional documentary evidence.  [Husband] simply wanted the opportunity to produce more documentary evidence for the court to consider.” 

Even if he had not forfeited the right to a hearing, the trial court would have made a sufficient finding of good cause to deny live testimony. The trial court had concluded the matter was fully briefed and that “an evidentiary hearing would not give the court information that could have, and should have, been included in the written submissions.” This meant “that the material facts were not in controversy (rule 5.113(b)(2)); that live testimony was not necessary for the court to assess the parties’ credibility (rule 5.113(b)(3)); and that the parties had been given ample opportunity to present their cases and that the court was in possession of all the information it required to rule on the request.  (Rule 5.113.(b)(6) [requiring the court to consider ‘[a]ny other factor that is just and equitable’].)”

In any event, Husband failed to show that he was prejudiced by the denial of his request for an evidentiary hearing. Although Husband stated he was “harmed by being deprived of the ability to cross-examine [Wife]” he did not sufficiently “explain how his cross-examination would have related to the issues on which the trial court based its fee order.” Since the “failure to make good cause finding under section 217 is harmless where appellant does not show how live testimony would affect the issues on which the court based its order,” any such error was similarly harmless.

Husband’s Challenge to the Attorney Fee and Costs Order

Finally, as to Husband’s argument on attorney fees, the Court of Appeal was not persuaded that “the trial court failed to make the required findings to support a need-based fee award.” Husband argued that the trial court did not “make findings as to the ‘amount of fees [Wife] has paid to date, how she paid for them and where the funds came from,’ or as to [Wife’s] employment prospects,” but there was no authority supporting that these were required findings and nothing suggested that the trial court failed to consider the evidence before it.

The Court of Appeal also concluded that the ultimate attorney fee order of $25,000 was supported by substantial evidence.  This argument rested on Husband’s argument that his disposable income was only $825 per month. Assuming, without deciding, that fee award must be paid from net disposable income as set forth in the child support statutes, Husband deducted “self-reported monthly expenses, including his expenses for rent, groceries, and transportation” from his income, even though the only deductions permissible under section 4059 are “ the party’s state and federal income tax liability, FICA contributions, mandatory retirement deductions, health insurance premiums, child support, and job related expenses.” The Court of Appeal also concluded that the trial court was allowed to rely on the fact that the self-represented Husband had vigorous representation but that Wife had to pay for her own attorney.

To the extent Husband argued that “his being unemployed and therefore lacking current income precludes a finding that he has ability to pay [Wife’s] fees, he downplay[ed] the evidence of his earning capacity.” The trial court was allowed to consider Husband’s earning capacity in determining attorney fees because it is an explicit Family Code section 4320 factor and because Family Code section 2032 explicitly directs the trial court to consider the 4320 factors. Further, there was evidence that Husband “earned over $155,000 in salary and bonus as an attorney in 2020; that he was a member of the bar in good standing; and that shortly after he lost his job in February 2021 he told [Wife] that he was working with a recruiter and expected to be employed by March.” Although Husband was “temporarily without earned income, there is evidence from his qualifications and history of employment, his statement that he expected to be employed in spring 2021, and the fact that he was working with a recruiter, to support a reasonable expectation that he will again be gainfully employed as an attorney.”

Author’s note: There have been several new cases on section 217 over the past year (Cohen, Segal v. Fishbein, and now Hearn.) The holdings in these cases are crucial because they indicate that it is relatively easy to forfeit a right to an evidentiary hearing. As far as section 217 is concerned, Hearn is the most important one of the three because Hearn covers the same issues and has the same holdings as the other two. If you are going to read one section 217 case this year, make sure it is Hearn.

Hatley v. Southard

08/01/23 CA 4/2, Certified for Publication on 8/16/23: E080000

hhttps://www.courts.ca.gov/opinions/documents/E080000.PDF

In this case, the Court of Appeal reversed the denial of a restraining order request after hearing after the trial court failed to correctly apply the law. The trial court errantly indicated that Wife’s “allegations of a pattern of control and isolation by limiting her access to money, communication, and transportation did not fall within the statutory definition of domestic violence or abuse.”

This alleged behavior included the following: using suicide threats to manipulate Wife, depositing money into accounts she could not access, forcing her to request transfers of money, and then canceling her ATM card if she spent too much, ordering her not to use the ATM card for necessities, and depriving her of her vehicle and phone.

Husband also threatening to isolate Wife from her daughter, which was also abuse because it involved isolating her from supportive relationships.

Husband also sent abusive and sexually degrading messages which had the capacity to disturb Wife’s peace.

Under the law, “attempts to control, regulate, and monitor a spouse’s finances, economic resources, movements, and access to communications are abuse.”

The Court of Appeal, however, did not agree with Wife that the trial court should be directed to grant the restraining order request on remand.  This was because a finding on disturbing the peace “requires an analysis of the totality of the circumstances…which includes factual and credibility determinations” and the only allegations not in dispute were the text messages. Further, the factfinding of the trial court will determine the scope of the restraining order, including whether the order should extend protections to third parties and to pets as Wife requested.

The trial court also erred by not allowing Wife to testify about past acts of sexual abuse. Although Wife only made a general allegation of sexual abuse in her pleadings, that allegation was sufficient to put Husband “on notice, without her detailing the specifics in writing.” At the hearing, the responding party would have their “opportunity to respond to the specific allegations…and to request a continuance” if additional time is needed to respond.

Finally, the trial court erred by failing to address Wife’s request for spousal support as the granting of a restraining order is not a prerequisite for awarding spousal support under the DVPA.

In re Marriage of Cole

08/11/2023 CA 1/3: A163975

https://www.courts.ca.gov/opinions/documents/A163975.PDF

In this case, the Court of Appeal concluded that the trial court did not abuse its discretion when it determined that Husband’s “reported salary income in 2020 was not determinative of his ability to pay child support in 2020 and that he possessed sufficient financial assets and imputed income to meet his child support obligations.”

The order Husband sought to modify required him to pay Wife $7,537 per month. In May 2020, Husband filed a modification alleging that his law firm suffered severe hardship and that he had to stop taking a salary to keep his business afloat. The trial court denied Husband’s request, finding that he “‘failed to prove, by a preponderance of the evidence, that he and [his firm] experienced a material change of circumstances to warrant an adjustment or suspension’ of his 2020 child support obligations and also failed to prove ‘by a preponderance of the evidence that the gross receipts received by SCA, reduced by expenditures required for ongoing operations, left him with insufficient income, assets, or access to funds’ to meet such obligations.”

Even though Husband reported a reduced salary in 2020, his firm maintained “$1.4 million in reserves for law firm operating and capital expenses,” of which over $925,000 was held in “reserves for long-term investments” not required for the firm’s day-to-day operations. This latter finding was critical “because the trial court had discretion under section 4058, subdivision (b)(1), to consider ‘the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.’  It was therefore “reasonable for the court to infer that [Husband’s firm] had sufficient funds in its reserve accounts to pay [Husband] a salary that was more commensurate with his work and professional experience as a full-time class action attorney, or at least a salary that would have covered his 2020 child support obligations, while leaving adequate reserves for [his firm’s] operational expenses.”

Even though the trial court did not invoke the guideline deviation statute, the Court of Appeal nevertheless concluded that the trial court had discretion to deviate from guideline due to the special circumstances of the case. Here, substantial evidence demonstrated Husband’s “significant net worth, assets, income and earning capacity available to pay” his 2020 child support obligations. Such substantial evidence included the following:

“(1) [Husband] voluntarily and substantially slashed his salary to $100,000 even though his earning capacity was much higher and [his firm had] sufficient non-operating reserves to at least cover the $90,444 he owed for child support; (2) in lieu of [Husband] taking a larger salary to meet his personal and family expenses in 2020, [Husband] and his current spouse evidently covered such expenses in part by taking distributions totaling at least $977,000 from their non-retirement Morgan Stanley accounts; and (3) Morgan Stanley accounts paid at least $387,245 of Husband’s personal and business credit card expenses in 2020.”

It was unclear whether the credit card expenditures were for personal or business purposes.

Author’s Note: The holding that a Court of Appeal can affirm any child support order if it would be supported by a deviation from guideline, even if a deviation is not raised at all in the trial court, adds a wrinkle to child support challenges on appeal. It is unusual for our Courts of Appeal to affirm on a basis that is not plead where the analysis is so fact intensive and where neither side had an opportunity to meet the evidence within the context of that unpled legal theory. Further, Respondents defending such orders on appeal will need to take a look to see if the order can be justified by a deviation from guideline much more frequently and cannot rely on the fact that the issue was not raised in the trial court.

Last v. Superior Court

08/2/2023 CA 4/3: G060943

https://www.courts.ca.gov/opinions/documents/G060943.PDF

In this case, the Court of Appeal concluded that since Family Code section 1615 “creates a presumption ‘that a premarital agreement was not executed voluntarily’ unless the trial court makes five designated findings, the [trial] court had jurisdiction and discretion to award temporary spousal support, notwithstanding a waiver of spousal support in a premarital agreement, because the court did not make, and was not requested to make, the five findings under section 1615(c) that were necessary to rebut the presumption that the premarital agreement was not executed voluntarily.”

The Court of Appeal, however, noted that had Husband brought “his own request for an order” and asked the trial court to “conduct a facial review of the Premarital Agreement” to make findings under section 1615, the trial court could have made preliminary findings under section 1615 and denied the temporary spousal support request.  It was not enough that Husband only requested the bifurcation of the validity of the premarital agreement.

Per the Court of Appeal, “[i]t is …incumbent upon the party seeking to enforce a premarital agreement to initiate this first step by bringing a request for order for the trial court to undertake such a facial review and make findings under section 1615(c).” The Court noted had the appellant done so, this “might have averted this appeal, and, potentially, the need to recoup support payments from” Wife. 

Next, the Court of Appeal concluded that the trial court was also allowed to retroactively modify the temporary spousal support and order reimbursement of amounts paid in temporary spousal support if the spousal support limitations in the premarital agreement were ultimately determined to be enforceable.

Finally, the Court of Appeal concluded that the reservation of jurisdiction to award temporary support was final and appealable as a collateral order. Under the collateral order doctrine, “[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, a direct appeal may be taken.” 

Auther’s note: The burdens relevant to the enforcement of premarital agreements can be quite confusing. On the one hand, Family Code section 1615, subdivision (a) provides that “A premarital agreement is not enforceable if the party against whom enforcement is sought proves…[t]hat party did not execute the agreement voluntarily,” implying that the burden is on the person seeking to avoid enforcement. Family Code section 1615, subdivision (c), however, provides, “(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following…”

Estate of Eskra best explains what, at first blush, appears to be a contradiction. Per Eskra, “the statutory scheme deviates from the typical situation where the party who bears the burden of proof also bears the initial burden of production…[the party that sought to avoid enforcement] did bear the ultimate burden of proving involuntariness” although “[the party seeking to enforce the agreement] bore the burden of producing evidence relevant to the findings…” (Estate of Eskra (2022) 78 Cal.App.5th 209, 232.)

In other words, the burden of production is on the party seeking to enforce the premarital agreement while the burden of proof is on the party seeking to avoid enforcement.

As far as practice pointers, this case makes it clear every single party who wants to enforce a limitation on spousal support in a premarital agreement prior to trial needs to file a Request for Order requesting that the trial court conduct a facial review of the agreement to determine that the spousal support limitation is valid. This case even suggests that making such a request in a Response to a temporary support RFO is not enough.

Pollock v. Superior Court

07/31/23 CA 2/1: B321229

https://www.courts.ca.gov/opinions/documents/B321229.PDF

The Civil Discovery Act provides, in relevant part, that a party to whom a document demand has been directed “shall respond separately to each item or category of item by any of the following:  [¶]  (1)  A statement that the party will comply with the particular demand . . . .  [¶]  (2)  A representation that the party lacks the ability to comply with the demand . . . .  [¶]  [or]  (3)  An objection to the particular demand . . . .”  (§ 2031.210, subd. (a).) The first paragraph of the response must identify the responding party, the set number, and the identity of the demanding party.  (§ 2031.210, subd. (b).) “Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand . . . .”  (§ 2031.210, subd. (c).) The responding party’s response to a production demand must be verified unless it contains only objections.  (§ 2031.250.)

“Section 2031.280” also “prescribes the form in which items must be produced.  As recently amended, it requires that a document ‘be identified with the specific request number to which the documents respond.’  (Id. at subd. (a).)  This replaces the prior requirement that documents “either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.’  (Former § 2031.280, subd. (a).)”

In this case, the Court of Appeal concluded that the “statement of compliance in response to a production demand need not identify which document pertains to which request” as long as once the documents are actually produced, that identification is made. In this case, Pollock’s statement of compliance did not identify which documents pertained to which request, but he afterward later produced an unverified 46-page table that did so. It was, therefore, error for the trial court to sanction him for not including this table alongside a verified statement of compliance.

Author’s note: If you were not already aware, this case points out that the form in which production responses are to be made was recently amended as set forth above.

Vilches v. Leao

07/28/23 CA 1/4: A163638

https://www.courts.ca.gov/opinions/documents/A163638.PDF

Under Health and Safety Code section 123110, the personal representative of a minor is entitled to access the minor’s patient records with certain statutory exceptions. At issue in this appeal is the exception that allows a health care provider of a minor to withhold records where “[t]he health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the provider’s professional relationship with the minor patient or the minor’s physical safety or psychological well-being.  The decision of the health care provider as to whether or not a minor’s records are available for inspection or copying under this section shall not attach any liability to the provider, unless the decision is found to be in bad faith.”  (§ 123115, subd. (a)(2).)

Plaintiff was the father and sole guardian of the minor child. The defendant was a licensed therapist who treated the minor child. Plaintiff asked for records and the therapist denied his request.

Consistent with the statute, the therapist determined that releasing the records “would have a detrimental effect on the minor patient’s ability to trust in general, and would negatively impact the patient-counselor relationship.” The therapist was also concerned that plaintiff “would use the records to coach his daughter to respond favorably during the court evaluation in an upcoming custody proceeding.”

Defendant moved for summary judgment, which was granted and ultimately affirmed. The Court of Appeal concluded that the therapist’s determination as to whether there would be a detrimental effect on the minor was not subject to judicial review, unless that determination was made in bad faith. This is because “nothing in the statutory scheme suggests that a provider must convince a court that the determination of detriment was reasonable and correct.” Further, “[t]his statutory choice makes logical sense, as the Legislature could reasonably decide that untrained members of the judiciary should not be second-guessing the clinical judgment of therapists concerning their minor patients’ well-being and the patient-counselor relationship.”

Since there was not a triable issue on the question of bad faith, the trial court therefore properly granted summary judgment in favor of defendant.

Author’s note: By immunizing the therapist’s detriment determination to judicial review in all cases other than where there is bad faith by the therapist, this case establishes a nearly insurmountable barrier for a parent to get access to a child’s medical records where the therapist determines a detrimental result would follow from their disclosure.

Dollase v. Wanu Water, Inc.

07/28/23 CA 2/8: B314900

https://www.courts.ca.gov/opinions/documents/B314900.PDF

In this case, the Court of Appeal reversed an order denying a request to set aside a judgment under Family Code section 473(b), which request was accompanied by an attorney’s affidavit of fault.

Respondent first argued that the application for set aside was properly denied because it was not “in proper form” as section 473 requires for two reasons. First, section 473 requires that a motion to set aside a default “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein.” Per Respondent, a motion to quash a summons for a failure to properly serve a defendant was not an “answer or other pleading.” Second, Respondent argues that motion to quash was not filed/served alongside the motion to set aside.

The Court of Appeal rejected both of these arguments.

First, the Court of Appeal concluded that a motion to quash a service of summons was “an answer or other pleading” within the meaning of Code of Civil Procedure section 473. The Court of Appeal concluded that the underlying policies for this requirement were not undermined by the inclusion of a motion to quash rather than an answer to a complaint. Those policies include those which “favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.” Respondent’s argument that the motion to quash was not a pleading was incorrect because it “clearly constitutes a pleading which, if timely filed, would have precluded the clerk from thereafter entering defendants default.” 

Second, the Court of Appeal concluded that the appellant’s inclusion of the motion to quash after the hearing, but before the trial court ruled on the merits, substantially complied with the requirement that a “copy of the answer or other pleading” accompany the motion. Other cases held that providing a proposed pleading on the day of the hearing constituted substantial compliance and, since this hearing was remote due to COVID-19 protocols, it was not practical for the Appellant to have delivered the pleading on the day of the hearing.

Vinson v. Kinsey

06/27/23 CA 1/2, Certified for Publication on 7/26/23: A166582

https://www.courts.ca.gov/opinions/documents/A166582.PDF

In this case, the Court of Appeal reversed the denial of a restraining order request under the DVPA.

The trial court denied the request “because it concluded that the fact” Mother continued to have contact with Father meant she was “not particularly concerned” about his “comment that he will kill her,” which comment the court said “had no meaning.”

The trial court erred in several ways. First, it implied that the DVPA only protects against threats of physical violence. However, the statutory scheme makes clear that the DVPA protects against non-violent threats, such as those that disturb one’s peace by destroying one’s mental or emotional calm.

Next, the trial court’s “conclusions that Kinsey’s threat to kill Vinson ‘has no meaning’ and Vinson ‘doesn’t act like it’s a threat of violence’ effectively imposed on Vinson a singular vision of how an abused woman should act.” However,  “‘[a]ll women exposed to violence and abuse in their intimate relationships do not respond similarly, contradicting the mistaken assumption that there exists a singular ‘battered woman profile.’  Like other trauma victims, battered women differ in the type and severity of their psychological reactions to violence and abuse, as well as in their strategies for responding to violence and abuse.”

Next, the trial court questioned Mother’s credibility “due to her failure to file the request for a restraining order until approximately seven weeks after” a particular incident. The trial court stated it “doesn’t understand why there was a delay in requesting the restraining order” and “perhaps” it was because Mother “was not really concerned about [Father’s] comment that he will kill her.”  While the trial court “was entitled to consider the timing of the restraining order request as part of the totality of the circumstances…[t]he length of time since the most recent act of abuse is not, by itself, determinative.  (§ 6301, subd. (c).)” Moreover, “the trial court’s focus on the time between the March incident and filing of the restraining order request ignores the parties’ overall history over the course of a decade-long relationship and the recognized difficulty of leaving an abusive relationship.” 

The trial court also appeared to focus its evaluation of abuse on one particular incident. But by focusing on just the one incident without consideration of the history of physical abuse, verbal abuse and destruction of property that [Mother] attempted to put in evidence, it is difficult to see how the trial court could have satisfied the statutory requirement that it consider ‘the totality of the circumstances in determining whether to grant or deny a petition for relief.’  (§ 6301, subd. (c).)” Because of this failure, the matter was remanded for a reconsideration of the request if Mother wanted to pursue it.

The trial court also erred by failing to include a statement of reasons for why it ordered unsupervised visitation where allegations of abuse were brought to the attention of the Court as set forth in Family Code section 3011. Although a statement of reasons is not required where the parties stipulate to such an order, as occurred here, the reconsideration of the order denying the restraining order request made it appropriate to “conditionally reverse the visitation order as well, as error in the court’s evaluation of [Mother’s] claim of abuse could undermine its determination of reasonable visitation.”

DeWolfe v. DeWolfe

06/28/23 CA 2/5, Certified for Publication on 7/21/23: B313469

https://www.courts.ca.gov/opinions/documents/B313469.PDF

In this case, the Court of Appeal reversed the order of a Privately Compensated Temporary Judge (“PCTJ”) after concluding that it did not have jurisdiction to make an order according to the terms of her appointment.

Per those terms, the appointment would terminate on April 1, 2020, except that it would continue as to RFOs filed prior to and still pending and undecided as of April 1, 2020.  On June 26, 2020, Wife withdrew an RFO for accounting without prejudice. On October 13, 2020, Husband filed an RFO to restore Wife’s RFO. The PCTJ ruled that it had jurisdiction over Husband’s RFO even though it was filed after April 1, 2020. Wife filed an RFO with the supervising judge of the family law division of the superior court, asking the judge to determine that the PCTJ did not have jurisdiction to rule on Husband’s RFO. The judge refused to do so. Afterward, the PCTJ ruled on the merits of Husband’s RFO.

Because there is no law “that holds that a party needs a trial court’s approval to withdraw a motion,” Husband’s RFO had to be considered a brand new RFO such that hearing it exceeded the terms of the PCTJ’s appointment.

Justice Baker’s Concurring Opinion

While Justice Baker ascribed pure motives to the PCTJ, believing that she had heard the RFO to discourage forum shopping, he expressed other concerns raised, but ultimately not decided in the appeal with a focus on how legal proceedings must “appear fair to all that observe them.” He noted that the PCTJ was paid by Father, did not subscribe to the judge’s oath of office, and apparently did not disclose a newly substituted law firm in the case “served as counsel in other matters” over which the PCTJ presided. He suggested it may be time for a re-examination of the rules and procedures for private judging.

DEPENDENCY (current through 8/21/2023)

By:  John Nieman

In re M.D.

7/20/23, CA 4/1 D081568

https://www.courts.ca.gov/opinions/documents/D081568.PDF

Father appealed jurisdiction and disposition orders following a contested hearing. The juvenile court found that father left his 8-year-old daughter alone for extended periods, inadequately fed, housed, supervised, and educated. On appeal father claimed that the court should not have taken jurisdiction because it was only poverty that resulted in the deplorable conditions. He also contended that there was insufficient risk to his daughter to justify removal as he had remediated the poor conditions of his home by the time the court took jurisdiction and made dispositional orders. The appellate court, though sympathetic that the family was poverty-stricken, affirmed, finding that poverty alone did not account for the conditions in which the child was found. As to removal, the appellate court affirmed because father’s perspective about everything that happened, including refusing offers of help from both family and friends, demonstrated a substantial risk to his daughter were she left in his care and custody.

In re Delila D.

7/21/23, CA 4/2: E080389

https://www.courts.ca.gov/opinions/documents/E080389.PDF

This is an Indian Child Welfare Act (ICWA) case. Mother appeals termination of her parental rights on the ground that an inadequate inquiry as required under Welfare & Institutions Code (W&I) §224.2 was conducted. It appears undisputed in this case that the initial inquiry as would be required by W&I §224.2(b) was not conducted adequately. This appeal was decided by the same division that decided the In re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O. (2023) 91 Cal.App.5th 672 cases. Those cases (reviewed here) indicate that unless a child is removed without a warrant under W&I §306, that the inquiry into extended family members specified in W&I §224.2(b) doesn’t apply. This means that the extensive inquiry required by W&I §224.2(b) wouldn’t apply to children removed with a protective custody warrant (W&I §340).

This panel interprets the changes to W&I §224.2(b) to encompass any child before the juvenile dependency court, be the initial removal under W&I §306(a) (without a protective custody warrant) or W&I §340 (with a protective custody warrant). This case interprets W&I §306(b)’s use of “temporary custody” to mean any in-custody child before the juvenile dependency court. Perhaps predictably, one of the panel members involved in this decision was also a member of the panel that decided the Robert F. case, and therefore filed a dissenting opinion. It seems the primary dispute is essentially whether W&I §360(b) (which uses “temporary custody”) applies to those children removed with a warrant under W&I §340 (which uses “protective custody”).

Author’s note: All in-custody children initially before the juvenile dependency court are in temporary custody, regardless of the procedure used to remove them.

In re Jayden M.

7/27/23, CA 2/2: B321967

https://www.courts.ca.gov/opinions/documents/B321967.PDF

Mother appeals an order bypassing (denying) normally required reunification services. Grounds employed in this case were from W&I 361.5(b)(10) (failure to reunify), and W&I 361.5(b)(11) (termination of parental rights) -both for the same reason in the past that the case is before the current juvenile court. Mother claims the juvenile court abused its discretion in finding that efforts to address her problems “subsequent” to either failure to reunify or termination of parental rights must be measured from the time the new case comes before the juvenile court, rather than “subsequent” to the point at which reunification services or parental rights are terminated.

The appellate court held that efforts “subsequent” were from the time of either termination of reunification services or parental rights -both properly applied in this case- and so affirmed. The appellate court also questioned the quality of mother’s efforts even subsequent to the filing of the petition for Jayden.