FAMILY LAW (current through 9/21/2023)
By: Andrew Botros, CFLS
The precise holdings in a given case are bolded.
Editor’s Note: The link for Hatley v. Southard 08/01/23 CA 4/2, Certified for Publication on 8/16/23: E080000 as previously published in Issue 7, 2023, Vol. 7 of the FLNM contained an error for the link to the referenced case. The correct link for this case is https://www.courts.ca.gov/opinions/documents/E080000.PDF.
In re Marriage of C.D. and G.D. II
09/12/23 CA 2/6: B323428
In this case, the Court of Appeal reversed the trial court’s post judgment order granting a request from Father to enroll the children into public school. At the time he made that request, however, Mother had sole legal custody. Since Mother had the sole “right and the responsibility to make the decisions relating to health education, and welfare of” the children under Family Code section 3006, Father was not permitted to request that the trial court order Mother to enroll the children in public school. To obtain joint legal custody, he would have to show a significant change in circumstances. The record, however, did not reflect that the trial court made such a finding. Accordingly, the trial court abused its discretion.
Justice Yegan concurred in the result only. He believed that the trial court should have summarily denied the request because Mother had sole legal custody. That should have been the beginning and the end of the analysis. Since at no time in the briefing or at oral argument had Father sought a change of custodial status, he felt that majority opinion “may be interpreted as encouraging a noncustodial parent to litigate issues that are foreclosed by statute” by analyzing the case through the lens of abuse of discretion and changed circumstance.
In re Marriage of C.D. and G.D. I
09/12/23 CA 2/6: B318718
This appeal concerns the same parties and same children as the case above. Mother was granted full custody of the children and Father was barred from all visitation after the trial court concluded he sexually abused the children. The case primarily concerns the interpretation of Family Code section 3118, which reads, in relevant part, as follows:
“In any contested proceeding involving child custody or visitation rights, where the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse, the court shall require an evaluation, investigation, or assessment pursuant to this section.” (Fam. Code, § 3118.)
The trial court had appointed a child custody evaluator to do a general evaluation but did not order an evaluation under section 3118. It nevertheless concluded that Father had sexually abused the children. Father contended that “the custody and visitation orders attached to the judgment should be vacated because the trial court did not order” that section 3118 evaluation. The Court of Appeal disagreed.
First, Father had already stipulated that the evaluation was unnecessary because he and Mother had agreed to send their children to therapy. Under the appellate doctrine of invited error, a party cannot complain of error made at his or her own request.
Second, Father could not show prejudice. Since he refused to sit for his deposition, the trial court imposed sanctions against him that prevented him from offering any evidence on custody and visitation at all. A favorable section 3118 evaluation would have been precluded under the sanction, and Father did not challenge that sanction on appeal.
Third, no section 3118 evaluation was required because neither party requested the court to “determine that there [was] a serious allegation of child sexual abuse.” This was because “the law casts upon a party the duty of looking after their legal rights and of calling the judge’s attention to any infringement of them.” As the Court of Appeal put it, if “Father wanted the court to make a serious sexual abuse determination—a determination that would have triggered a section 3118 evaluation—he was required to ask it to do so.” Absent that request, his contention was forfeited on appeal.
Fourth, the Court of Appeal rejected the argument that only “a section 3118 evaluation can provide the evidentiary basis for finding that a parent sexually abused a young child.” That holding would have conflicted with existing law that requires a trial court to look at all the circumstances bearing on the best interests of the children when issuing custody and visitation orders. It would also usurp an important fact-finding duty of the trial court, which permits it to reject expert opinion.
DEPENDENCY (current through 9/17/2023)
By: John Nieman
The precise holdings in a given case are bolded.
In re R.F., et al
8/21/23, CA 4/2 E079941
Children were placed with paternal grandparents since removal from their parents. Termination of parental rights ensued, followed shortly thereafter by removal from paternal grandparents (PGP’s) based on methamphetamine use by PGF. PGM appealed denial of her Welfare & Institutions Code (W&I) §388 petition for a hearing on the removal based on inadequate notice of her right to request and have a hearing on the removal. Though PGP’s were not formally designated prospective adoptive parents per W&I §366.26(n), the appellate court cites Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, which indicates such a formal designation is not necessary to confer the rights afforded by subdivision ‘n’. The appellate court found it uncontroverted by the facts in the record that notice of the right to request a hearing on the removal was not proper, as the PGM’s 388 petition asserted. Remanded to assess whether removal from PGP’s is in the children’s best interests based on conditions as of the time of that future hearing (following State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, at 287).
In re Andres R.
8/23/23, CA 4/2: E079972
Father challenges jurisdictional findings, the sufficiency of evidence to justify removal of his child, as well as the adequacy of the inquiry into the possible applicability of the Indian Child Welfare Act (ICWA). The opinion attempts to address discord created by last month’s In re Delila D., published7/21/23 [(CA 4/2: E080389) Reviewed here. It appears that review was granted by the Supreme Court on 8/22, S281447], that disagreed with the In re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O. (2023) 91 Cal.App.5th 672 position that only warrantless removals require application of the increased inquiry duties of W&I 224.2 as implemented in the enactment of AB 3176 in 2018 (effective 1/1/2019).
Domestic violence incidents gave rise to filing of the petitions and subsequent removal. No abuse of discretion was found related to taking jurisdiction or the removal at disposition.
This court defends its position on Robert F. and Ja. O. by pointing out that the creation in 1971 of warrant-based protective custody of children was different from the then use of “temporary custody”, a phrase that continues to be employed in W&I §305 and W&I §306.
As luck would have it, there is a concurring opinion by the author or Delila D. which essentially purports that the ongoing nature (this case was appealed from disposition) permits the Agency to conduct any additional inquiry required (obviating the need for reversal), which the Justice continues to assert is required following any method of removal.
In re N.F.
9/5/23, CA 2/3: B318674
This is an Indian Child Welfare Act (ICWA) case. Mother appeals denial of her W&I §388 petition by asserting that the procedure to investigate the ICWA as required by W&I §224.2 was inadequate prior to the establishment of the current legal guardianship and subsequent dismissal of dependency. While notably a juvenile court retains jurisdiction over guardianships it creates, hearing a W&I §388 petition does not necessarily re-open dependency and therefore any possible application of W&I §224.2. Since mother failed to appeal and challenge the procedure related to the initial (pre-guardianship) ICWA investigation, she lacked standing to appeal those decisions now.
In re V.C., et al
9/6/23, CA 1/2 A166527
This is an Indian Child Welfare Act (ICWA) case. This appellate court sides with the Delila D. court (see above), that whether a protective custody warrant was or was not issued prior to actual removal is not relevant to the depth of inquiry required by W&I §224.2. Finding the initial inquiry inadequate (prior to termination of parental right, which had already been remanded to comply with requirements set out by In re Caden C. (2019) 34 Cal.App.5th 87) the case is remanded conditionally to conduct an adequate ICWA inquiry and proceed accordingly.
In re Jerry R., et al
9/11/23, CA 5 F085850
This is an Indian Child Welfare Act (ICWA) case. This appellate court also sides with the Delila D. court (see above), that whether a protective custody warrant was or was not issued prior to actual removal is not relevant to the depth of inquiry required by W&I §224.2. Finding the initial inquiry inadequate (prior to termination of parental rights) the case is remanded conditionally to inquire adequately, comply with the ICWA (if found applicable), or (if ICWA inapplicable) reinstate the ICWA not applicable finding.