Justia Family Law Opinion Summaries

The parties were married for almost 22 years before they separated. Appellant Kim Shimkus appealed a postjudgment order granting respondent Jeffrey Shimkus' (Jeff) request to terminate spousal support. She contended the court erred when it did not automatically admit declarations into evidence; failed to apply the disentitlement doctrine; found there was a change of circumstances warranting termination of spousal support; and failed to require Jeff to prove inability to work. She also claimed procedural errors: the court did not provide a statement of decision, failed to set out its analysis of the factors in Family Code section 4320, and failed to make findings as to its denial of attorney fees. After review, the Court of Appeal concluded the trial court did not err when it refused to consider the declarations that were never offered into evidence. Nor was it error to find the disentitlement doctrine did not apply. Further the court properly found a change of circumstances allowing it to consider whether support should be modified. However, in making its decision the court was required to consider all of the section 4320 factors. The Court concluded it could not determine whether the trial court did so because it failed to issue a statement of decision. Therefore, the case was reversed and remanded for the trial court to consider all of the applicable section 4320 factors, issue a statement of decision, and to make findings as to its denial of attorney fees. View "Marr. of Shimkus" on Justia Law

Shannon L., the biological mother of minor Donovan L., Jr. (DJ), and her husband Donovan L., Sr. (Donovan) appealed a juvenile court's June 2015 disposition order. The juvenile court ruled that although Donovan was DJ's conclusively presumed father under Family Code section 7540, David S. was DJ's presumed father under section 7611, subdivision (d), and DJ had three parents under recently enacted section 7612, subdivision (c). After review, the Court of Appeal concluded the juvenile court erred in applying section 7612, subdivision (c) in this case, given its determination that David and DJ lacked an existing parent-child relationship. Accordingly, the Court reversed the disposition order insofar as it determined David was DJ's presumed father under Family Code section 7612, subdivision (c) and ordered services and visitation for David. View "In re Donovan L." on Justia Law

Four children were referred to the Mendocino County Human Services Agency, based on neglect. Their mother, who had a substance abuse problem, disappeared for days and left the children with their maternal uncle, Rafael, who was unable to provide adequately for their needs due to disabilities. The Agency had received seven prior referrals for mother and her children, members of the Cloverdale Rancheria of Pomo Indians. The Agency contacted Cloverdale's Indian Child Welfare Act (ICWA), 25 U.S.C. 1901, who stated that Cloverdale Rancheria opposed placement with Rafael. Mother was eventually arrested; the children were taken into protective custody. Rafael indicated that he loved the children and had provided care since they were born. Social workers helped him apply for relative placement. No Indian homes were available. Mother initially requested that Rafael be considered for placement. The children, who were found to have multiple developmental, physical, and emotional problems, were ordered into long-term foster care. The court of appeal affirmed, rejecting Rafael’s claims that he was not given mandatory ICWA notices as an Indian custodian; that active efforts were not provided to prevent the breakup of the Indian family; that the detriment finding was defective; and that he was provided ineffective assistance of counsel. Although the juvenile court failed to promptly investigate his Indian custodian status, any errors were harmless, given that mother revoked the custodianship. View "In re E.R." on Justia Law

Matthew Stuard raised equal protection and substantive due process challenges to an order allowing visitation of his daughter, Riley, by paternal grandparents Jeffrey Stuard (Jeff) and Cynthia Stuard (Cindy). The trial court awarded grandparent visitation under Family Code section 3104 even though there was no allegation Matthew or his ex-wife, Rebekah, were unfit parents. The trial court based its order on findings there is a preexisting relationship between Riley and her paternal grandparents and it is in Riley’s best interest to continue to have contact with Jeff and Cindy. On appeal, Matthew argued section 3104 violated his constitutional rights: (1) by discriminating between divorced parents and married parents who are cohabiting; (2) he would not be subject to the grandparent visitation order if he were still married to Rebekah; and (3) his substantive due process rights were violated by undermining his fundamental right to parent in the absence of any finding he or Rebekah were unfit parents. Furthermore, among other things, Matthew argued the trial court failed to follow section 3104 in basing the visitation order on Riley’s best interest and her parents’ role in allowing Jeff and Cindy to develop a relationship with her. The Court concluded that an anger management counseling portion of the trial court’s order did not include the findings required by section 3190 and did not limit the counseling to a period of not more than one year. Accordingly, the Court reversed only this portion of the order and remanded it for the trial court to make the statutorily required findings and to limit counseling to one year if the counseling order is reimposed. The Court rejected Matthew's other constitutional arguments and affirmed in all other respects. View "Stuard v. Stuard" on Justia Law

A social services agency removed a toddler from his parents’ custody when his mother ran out of medication and experienced a relapse of schizophrenic episodes that involved violent hallucinations of harming their child. The agency was concerned that father was in denial about the gravity of mother’s illness. The law requires a court to decide, at six months, whether a parent has been offered “reasonable services" to aid in overcoming the problems that led to the removal, Welfare and Institutions Code 366.21(e). The agency apparently did not try to diagnose the mother as part of a case plan or help the parents more effectively manage her medication. The agency got court approval for psychiatric examinations, not in order to facilitate reunification services, but to potentially bypass reunification. Mother had a treating psychiatrist, but that individual was not called as a witness. Her social worker did not know if mother was on the right medication; there was no evidence the agency offered services to improve mother’s ability to take her medication as prescribed. The court of appeal reversed the six-month order terminating reunification services and setting a hearing to establish a permanent plan for adoption. No substantial evidence supported findings that adequate reunification services were provided to either parent. View "Patricia W. v. Superior Court" on Justia Law

K.S. was removed from an abusive home at age four. At age five she was placed with Andrea, who adopted her. K.S., has reactive attachment disorder, attention deficit hyperactivity disorder, post-traumatic stress disorder, and a learning disorder, which qualified K.S. for the Adoption Assistance Program. When K.S. was nine a Program assessment identified problems including chronic lying and stealing, aggression, property destruction, enuresis, and sexualized behavior. K.S. carried a knife to school. In ninth grade, she was assaulted. K.S. ran away several times and a suspect in a burglary. After one run-away incident, school staff found a note K.S. had written saying “When you get this I will be dead!” A crisis counselor determined K.S. was not a danger to herself or others. Mother disagreed and felt K.S. should be placed on a psychiatric hold. She refused custody of K.S. Police were called and K.S. was placed in protective custody. K.S. was in foster care for two months. Andrea unsuccessfully requested that the petition be dismissed because she planned to move with K.S. to Sacramento where K.S. would have extended family support. The court of appeal affirmed K.S.’s placement with her biological aunt, rejecting Andrea’s challenges the juvenile court’s assumption of jurisdiction over K.S., and the disposition order. View "In re K.S." on Justia Law

In this case, the trial court granted Christian Noergaard’s request to remove his 11-year-old daughter from the care of her mother Tammy Noergaard and return the child to Denmark without an evidentiary hearing on critical aspects of Tammy’s objections under the Hague Convention. The trial court declined to address mother’s allegations father e-mailed a death threat against her and the daughter's younger sister or her exhibits and testimony supporting her claim he engaged in a history of spousal abuse and child abuse. According to mother, father’s abuse caused the daughter to run away from his care in Denmark and flee to Orange County with her maternal grandmother. Because due process required an opportunity for mother to be heard on claims that would prevent the daughter's return under the Hague Convention, the Court of Appeal reversed the trial court's judgment and remanded for a full evidentiary hearing. View "Noergaard v. Noergaard" on Justia Law

Mother Kimberly L. appealed a trial court's orders terminating her parental rights to Albert A. (A.A.) and Veronica A. (V.A.). Mother argued: (1) the juvenile court’s jurisdictional orders finding the children were dependents within the meaning of Welfare and Institutions Code section 300, subdivision (b)(1), were not supported by substantial evidence; (2) the juvenile court abused its discretion by terminating reunification services and setting a section 366.26 permanency planning hearing; (3) the juvenile court abused its discretion by denying mother’s request to continue the permanency hearing to allow her time to file a petition under section 388 requesting additional reunification services; (4) the juvenile court’s orders finding the children were likely to be adopted were not supported by substantial evidence; and (5) the juvenile court erred by concluding legally sufficient notice was provided to relevant Indian tribes pursuant to the Indian Child Welfare Act. In the published portion of this opinion, the Court of Appeal concluded mother waived her claim of error regarding the jurisdictional orders by not appealing the dispositions. Mother was absent from the continued jurisdictional hearing and was not entitled to notice of her right to appeal under California Rules of Court, rule 5.590(a). Because the Court concluded the juvenile court did not provide mother with timely and adequate notice of her right to challenge the orders setting a permanency hearing, as mandated by rule 5.590(b), mother did not waive her claim of error respecting the termination of reunification services. In the unpublished portion of this opinion, the Court of Appeal concluded the juvenile court did not abuse its discretion by terminating reunification services or by denying a request to continue the permanency hearing because mother did not comply with her case plan and did not visit with the children. However, the Court agreed with mother that the juvenile court erred by not considering legal impediments to the children being adopted by their paternal grandmother when it found the children were likely to be adopted, and we agree with mother and CFS that the ICWA notice was inadequate. Therefore, the orders terminating parental rights was reversed and the case remanded for the juvenile court to consider legal impediments to the children being adopted, for CFS to provide new ICWA notice, and for the juvenile court to determine whether that notice was sufficient. View "In re Albert A." on Justia Law

Husband, an attorney who works in private practice, contributed to Social Security through mandatory payroll deductions. Wife, an attorney with the County, contributed to a defined-benefit retirement plan through her employer. At issue in this appeal is: When one spouse contributes to Social Security, which according to federal law is a spouse’s separate property, and the other spouse participates in a state or local pension plan in lieu of Social Security, which according to state law is community property, how should a state court divide the parties’ retirement benefits? The court agreed with the trial court's holding that because the husband’s Social Security benefits are separate property and the wife’s county retirement benefits are community property, the Social Security benefits may not be considered and the county benefits must be divided equally between the parties. Accordingly, the court affirmed the judgment. View "Peterson v. Peterson" on Justia Law

When DCFS learned that Mother and Father had been involved in a physical altercation, the juvenile court assumed dependency jurisdiction over F.S. and ordered her placed in Mother’s home. Mother and Father were involved in another physical altercation, and police arrested Mother as the aggressor. After her arrest, Mother took F.S. to Texas without notifying the social worker. Father subsequently appealed from the juvenile court’s removal order while Mother and F.S. were absent from the jurisdiction. The court concluded that the juvenile court did not prejudicially err by proceeding in Mother's absence and that substantial evidence supported the removal decision. Accordingly, the court affirmed the judgment. View "LA Cnty. DCFS v. I.S." on Justia Law