Recent Family Law Cases (current through 5/22/20)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS and Fellow, American Academy of Matrimonial Lawyers
Marriage of Gutierrez
5/6/20, CA 2/8: B291507
H appeals TCT’s orders regarding division of marital property on four grounds:
- Court subtracted HELOC balance from value of home over H’s objection the loan had been written off. Affirmed. Dispute was “purely” factual and substantial evidence supported TCT’s ruling. The TCT could disregard testimony of H’s 2 witnesses concerning charge-off as the testimony was contradicted by W’s evidence lender continued to receive and accept payments after charge-off allegedly occurred.
- TCT sanctioned H for not making a proper disclosure regarding another residence. H asserted error as TCT made no finding W was unaware of other residence, citing cases which address civil fraud. Affirmed. “Under Feldman, Father’s argument is incorrect as a matter of law. The Feldman case explained Sections 271 and 1101 do not seek to redress civil injuries to a victim. Rather, they create incentives for divorcing parties to be candid with each other and the court. These sections look forward to spur good conduct, not backward to right past wrongs.”
- TCT “misinterpreted a 2008 court order to sell a third property” by reading the order to require H to act swiftly. H had sold home in 2011, but retained proceeds until trial in 2015. Affirmed. H’s proposed interpretation of the 2008 order was unreasonable. “Parties to a marital dissolution must act in good faith. If there is legitimate uncertainty about a court order, the proper response is to seek the court’s clarification, not to “interpret” the order in a self-serving and unreasonable way and then cover your tracks.”
- H’s complaints regarding valuation of specific personal property items also rejected by CtA.
In Re M.R.
4/29/20, CA 5: F079971
Following filing of dependency petition, M asserted she may have Indian ancestry but could not identify a specific tribe nor a family member who could help her identify a tribe. Based on this inability, TCT found ICWA did not apply but asked M to notify court in the event she obtained information regarding her possible Indian ancestry. Dispositional orders made without ICWA compliance and which adopted case plan that required parties to “follow all recommendations.” M appealed. CtA affirmed that a claim by a party that they “may” have Indian ancestry is “insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information …” citing In re Jeremiah G. CtA held that language in case plan that parties “follow all recommendations” did not satisfy requirements of WIC 16501.1(g)(2). “We hold that the case plan as currently drafted fails to satisfy section 16501.1, subdivision (g)(2), but we will not direct precisely how case plans must be worded, as the Agency has discretion in that regard.” However, inclusion of that order by the TCT was harmless error as parties could seek relief under WIC 388 if the “follow all recommendations” provision was used in a manner prejudicial to parties. Affirmed.
In Re S.O.
5/4/20, CA 4/2: E073131
Minor was subject to dual status supervision as a dependent (WIC 300) and ward (WIC 600). Following commencement of both proceedings, San Bernardino County became a “single status county.” That resulted in a status hearing being scheduled to determine which status to assign to Minor. Minor was not present at the status hearing, allegedly due to a bench warrant being issued in the WIC 600 case. TCT dismissed dependency proceedings to effectuate single status supervision in the WIC 600 action. Minor appealed on grounds TCT abused its discretion by failing to obtain a WIC 241.1 dual status report, which prevented TCT from making a “reasoned determination” of Minor’s best interests. Minor also appealed on grounds he should have been present at the status determination hearing. Affirmed. Distinguishing Marcus G. and Joey G., CtA held that requirements of WIC 241.1 regarding dual status jurisdiction had been met in 2016 and did not apply in cases, such as this, which involved a modification of jurisdiction. “Rather, at this stage in S.O.’s dependency proceedings, no joint recommendation report for dismissal of the dependency action was required.” Further, even if required, the record did not support Minor’s assertion the probation department has not participated or offered an independent assessment of the relevant criteria.
In Re Mary C.
5/4/20, CA 1/4: A157256
Parents appeal termination of their parental rights alleging TCT erred in finding children adoptable. Parents alleged children had too many special needs to be generally adoptable, and social service agency’s WIC 366.26 report failed to contain the statutorily required detail necessary to find children specifically adoptable. Affirmed. CtA found that four sections of the WIC 366.26 report covered 3 of the 4 components required to assess adoptability. As to the evaluation of the children’s “medical, developmental, scholastic, mental and emotional status” required under WIC 366.21 & 366.22, the parents had waived such arguments by failing to assert them in the TCT. “Brian P. held that challenges to defects in the section 366.26 report may be waived, while the sufficiency of the evidence of adoptability may not. (Id. at pp. 622–623.) Thus, while the parents may question whether substantial evidence supports the juvenile court’s findings of adoptability, by failing to object in juvenile court they have forfeited any challenge to specific defects in the report, such as omission of required content or insufficient discussion of required topics.” Further, a court is not required to find children “generally” or “specifically” adoptable as argued by parents. TCT must only find, based on substantial evidence, that children are ‘likely to be adopted’ within a reasonable time.” The children had been placed with a foster mother seeking to adopt them and provided evidence of the children’s “loving, trusting relationships” with the proposed adoptive parent. Alleged failure to investigate adopting parent’s partner distinguished from result in In Re B.D. Here, because of foster placement, presumably partner had been screened. There was no specific evidence of bad conduct by the partner. This is distinguishable from the facts in B.D. [adoptive father previously had his own children removed, had served prison time for a home-invasion burglary and was accused of physically abusing B.D. and another child in the home.]
In Re K.T.
5/13/20, CA 2/1: B301285
K.T. had been removed from M’s custody due to allegations M was using and selling drugs. K.T. was placed in F’s care. Jurisdiction/disposition report indicated F has an “extensive criminal history” and was currently on probation for disorderly conduct conviction. Report also stated K.T. was doing well in F’s care, she was healthy, meeting developmental milestones and “comfortable and relaxed with Father, who nurtured her and properly responded to her needs.” Report indicated F had all of the necessities for K.T. and noted no safety concerns. At jurisdiction hearing, K.T. was placed in F’s custody with F ordered to complete parenting education program. F objected as he had completed a parent education program in 2015 as part of a dependency order pertaining to F’s children from another relationship. Reversed. No substantial evidence existed to support TCT finding that F needed to participate in a parenting course in order to protect K.T. “Criminal history, standing alone, has no bearing on parenting abilities.” Further, although F had not cared for an infant in many years, he had demonstrated he was able to do so with K.T. “very well.”
In Re D.B.
5/20/20, CA 2/8: B298750
F appeals termination of dependency with juvenile custody order awarding sole custody of child to M based on allegations F had engaged in conduct which placed child at substantial risk of serious emotional damage [WIC 300(c)]. Affirmed. Five factors (violence, systematic verbal abuse, racism, impulsivity, and lack of insight) supported TCT’s finding that daughter was at risk of serious emotional damage due to F’s conduct. “Taken together, these five elements validate the court’s decision. And when the juvenile court proceedings began and sealed Father off from Daughter for months, Daughter flourished. She began to feel good. The juvenile court was entitled to conclude Father’s conduct did create a substantial risk of serious emotional damage.” TCT’s termination of jurisdiction over daughter at disposition was also not in error. Substantial evidence showed daughter was safe in M’s custody, giving TCT discretion to terminate dependency jurisdiction as daughter was in parental custody and no protective issue remained. F’s argument that juvenile court order “unreasonably restricted the family court’s power to modify custody or visitation” was also rejected by CtA. The juvenile court’s order did not restrict the family court’s modification power notwithstanding exit order allowing F to have monitored visits with daughter after he completed individual and conjoint counseling with daughter. Distinguishing In ReCole Y, CtA held exit orders can include conditions which must be met before a party can modify orders under FC 3021 absent showing of significant change of circumstances and finding in family court that modification is in child’s best interests. Further, requirement that conjoint therapy with daughter occur did not grant daughter “veto power” that would allow her to impermissibly stop monitored visits from occurring. “If Daughter refuses to cooperate with this order, Father would be entitled to seek modification of the order in family court…” under In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.
In Re E.E.
5/21/20, CA 4/2: E073284
M tested positive for amphetamines during prenatal visits for child E. E then tested positive for amphetamines and marijuana at birth. Dependency action commenced, with E and three older siblings removed from M’s care at jurisdiction and disposition hearing. M did not challenge findings as to E, but appealed orders pertaining to three older children alleging insufficient evidence that the siblings were at risk of harm or that children could not live with F. Affirmed. TCT properly exercised jurisdiction over children in light of substantial evidence pertaining to M’s conduct. A finding as to one parent is sufficient to support jurisdiction under In Re I.A. Further, jurisdiction under WIC 300 does not require a child actually be neglected. The evidence of M’s continued and serious drug use was “serious in and of itself” such that jurisdiction could be asserted without evidence of specific abuse or neglect of the other children (distinguishing In Re L.C.) Disposition order affirmed as there was clear and convincing evidence F was “largely uncooperative” with the social service agency, F failed to acknowledge or recognize issues with M’s drug use and did not make progress on his case plan. CtA did reject argument by DCSS that M was precluded from raising issue of drug testing improperly ordered prior to jurisdiction under disentitlement doctrine. “Because mother’s lack of cooperation and obstructive tactics did not rise to the level of absconding with her children or engaging in conduct that would similarly prevent the court from protecting her children’s best interests,” the Ct.A considered the merits of the appeal.
People v. Veamatahau
2/27/20, CASCT 1/1: S249872
[This case was initially overlooked by the author when first published]
Testimony of an expert witness based on a reliable database is not made inadmissible under People v. Sanchez. “In fact, in law, and in practice, testimony admitted under sections 801 or 802 of the Evidence Code is subject to scrutiny on reliability grounds by the court and opposing counsel. “Section 801 specifies that the ‘matter’ on which an expert relies must be ‘of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ (§ 801, subd. (b).) Thus, an expert must establish that the basis for his or her opinion is sufficiently reliable such that it ‘reasonably may be relied upon’ by experts testifying on the same subject.” The expert witness in this case “satisfied this requirement by averring that his use of the database was ‘the generally accepted method of testing for this kind of substance in the scientific community.’” SCT also addressed defendant’s failure to challenge the expert’s reliance on the databases at the time of trial. “Defendant in this case did not avail himself of any of these protections offered by the Evidence Code, choosing instead to rely on his closing statements to cast doubt on the reliability of the drug identification procedure. Yet simply because defendant did not test [the expert’s] testimony — offering no voir dire of the expert, no probing question about the acceptability of his methodology, and no cross-examination regarding the reliability of the database itself — does not mean the mechanism to do so is absent.” SCT did not address admissibility of database as a compilation under EC 1340: “Because we find that [the expert] did not relate inadmissible case-specific hearsay, we do not reach the argument concerning whether the testimony would also have been admissible under section 1340.”
Six4Three, LLC v. Facebook, Inc.
5/18/20, CA 1/4: A156095
In anti-SLAPP litigation, the TCT struck some of the 200 exhibits filed with the declaration of Facebook’s counsel, many of which had been marked confidential or highly confidential. The TCT also ordered sealed some of the exhibits which the TCT did not strike. Plaintiff appealed both the striking of the exhibits and the order to seal. Affirmed. An order striking evidence is not an appealable order. Further, a party does not have standing to challenge an order sealing documents in a file so long as they have access to the documents – based on such access, they are not a “party aggrieved by” an order made under CRC 2.550-2.551.
Hart v. Keenan Properties, Inc.
5/21/20, CASCT 1/5: S253295
In asbestos litigation, TCT admitted invoice with a company’s name and logo over hearsay objection. TCT ruled invoice admissible as circumstantial evidence to prove identity of a supplier, and not proof of the matters asserted in the invoice. CtA reversed, concluding the description of the invoice at trial by the plaintiff’s foreman was hearsay. The California Supreme Court disagreed with the CtA and reversed. “A document is generally a form of written verbal expression. If it is prepared before trial and offered to prove the truth of the words it contains, it is hearsay.” The testimony concerning the name and logo was not admitted to prove the statements contained in the invoice, but instead circumstantial evidence to establish a link between the supplier and the pipes the foreman recalled being delivered. “The fact that the point of identification is words is not sufficient to make the words hearsay, unless the words are offered to prove the truth of their content. Here the link between Keenan and the pipes does not depend on the word ‘Keenan’ being a true statement that Keenan supplied the pipes. Instead, the link relies on several circumstances demonstrated by the evidence.” The circumstances included the foreman’s testimony that when pipes were delivered, he received an invoice bearing Keenan’s logo. He then checked the delivery to confirm it matched the invoice. A bookkeeper for plaintiff’s employer testified she would only pay for a delivery after receiving paperwork from the foreman. Another circumstance was the testimony of a former Keenan employee that its name and logo were printed on its invoices, and that Keenan’s custom and practice was to provide invoices to customers. “Taken together, the evidence was relevant to prove the disputed link between Keenan and the pipes, regardless of the content the words on the invoice might otherwise have asserted.”