Justia Family Law Opinion Summaries

Father appeals from a dispositional order relating to Father made pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), contending that section 361, subdivision (c)(1) applies only to a parent with whom a child resides. The court agreed with Father that section 361, subdivision (c) does not apply where the trial court could not remove the child from Father’s physical custody under section 361, subdivision (c)(1) because the child was not residing with him when the petition was initiated. The court concluded, however, that Father has failed to show that the trial court’s reliance on section 361, subdivision (c) was prejudicial where, as the court in Dakota J. implicitly acknowledged, the dependency court has the power under section 361, subdivision (a) and section 362, subdivision (a) to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent. Accordingly, the court affirmed the order. View "In re Julien H." on Justia Law

Mother and Father appealed the trial court's order terminating their parental rights under Welfare and Institutions Code section 366.26. The court concluded that the trial court correctly decided that Mother was required to prove a compelling reason why termination of parental rights would be detrimental to the child. The court also concluded that Mother failed to prove that the benefit of continuing her relationship with the child outweighed the benefit of adoption where the trial court assessed the child's expressed desire for adoption, and the trial court's weighing of the evidence concerning the benefits that the child received from Mother's visits is supported by the record. Accordingly, the court affirmed the judgment. View "In re Logan B." on Justia Law

Father appealed the juvenile court's order removing his son, Michael, from his custody. Father argues that the governing statute, Welfare and Institutions Code section 361, subdivision (c)(1), does not permit removal from just one “custodial” parent. The court concluded, however, that section 361.2 should not be read to preclude removal from only one custodial parent in all situations; the section addresses placement when a child is removed from his or her previous home; and such placement is necessary only when the child has no home in which to stay. If a child remains with a custodial parent, there would be no need to consider other placement options. Because the court rejected Father's legal argument and Father does not challenge the sufficiency of the evidence underlying the removal order, the court affirmed the judgment. View "In re Michael S." on Justia Law

The Del Norte County Department of Health and Human Services received a referral after police searched Mother’s residence and found mushrooms, meth pipes, marijuana paraphernalia, concentrated cannabis, brass knuckles and butterfly knives. It appeared the occupants were hoarders. Mother tested positive for methamphetamine, benzodiazepines, and marijuana. Her children (ages five and 11) were removed from her custody. The court ordered parenting education, random drug screening, substance abuse assessment and any recommended treatment, with supervised visitation. In subsequent reports, the Department noted that, despite her admitted daily marijuana and occasional methamphetamine use, Mother denied she had a substance abuse problem and had not “involved herself in any of the services” offered. After mother accepted a plea bargain, the Department recommended that services be terminated. None of the hearing participants knew how long mother would be incarcerated, or what prison programs would be available. The court concluded that there was an “extremely low” likelihood of reunification, and ordered services terminated. The court of appeal reversed. Mother was statutorily entitled to 12 months of services, which could be shortened only under circumstances described in Welfare and Institutions Code section 61.5,(a)(2). The juvenile court did not terminate services in accordance with those provisions. View "M.C. v. Superior Court" on Justia Law

The issue this case presented for the Court of Appeals' review was whether one spouse’s unilateral election (after a settlement agreement and judgment of dissolution) to change from one type of military benefit (retirement that was taxable and community property) to another type of military benefit (combat-related special compensation that was not taxable and separate property) could defeat the community property interest of the other spouse set forth in the marital settlement agreement. The Court determined that one spouse could not, by invoking a condition wholly within his control, defeat the community interest of the other spouse. The trial court here correctly determined that "the post-judgment election" by appellant Philip Chapman did not relieve him of his agreement to pay respondent Judy Chapman $475 per month for her community property share of his military retirement. The Court reversed the trial court’s order, however, because the remedy the court selected was improper. The trial court imposed a constructive trust on the funds received by Philip as combat-related special compensation benefits. But the remedy of a constructive trust was available only for wrongful conduct. View "Marriage of Chapman" on Justia Law

Shary Nassimi, formerly married to Esther Nassimi, contends that the trial court erred in concluding that he, alone, was financially responsible for defending and settling a claim brought by a third party seeking, among other things, rescission of an agreement to sell the business he owned and operated during the marriage. The court concluded that the liability arising from the claim for rescission and other relief initiated by the third party was a community obligation omitted from the marital dissolution judgment that divided the couple's assets and obligations, subject to division under Family Code section 2556. Therefore, the court found that Esther was obligated to pay half the cost of settling the litigation and reversed the court's order to the extent it denied Shary this relief. The court affirmed the trial court's order to the extent that it denied Shary's request for reimbursement of attorney fees and costs because the expense of pursuing litigation claims was allocated to him by the judgment and he failed to present sufficient evidence to enable the trial court to distinguish fees and costs potentially chargeable to Esther for defense of the third party's claims for affirmative relief from fees and costs incurred in pursuit of Shary's counterclaims. Finally, in view of the court's partial reversal of the trial court's order, the court reversed the attorney fee award in favor of Esther and remanded for reconsideration of the identity of the prevailing party, if any. View "In re Marriage of Nassimi" on Justia Law

The trial court found respondent Hugo H. committed an act of domestic violence against appellant Celia S., and therefore awarded her sole legal and physical custody of the couple’s two children because Hugo presented no evidence showing an award of custody to him was in the children’s best interest. Nonetheless, the court also awarded Hugo “visitation” consistent with the “50/50 timeshare” arrangement to which Celia and Hugo agreed nearly a year earlier. Under that arrangement, the children alternated living with Celia for one week and then Hugo for a week. Family Code section 3044 established a rebuttable presumption that prevents a trial court from awarding sole or joint physical or legal custody of a child to a parent who commits an act of domestic violence against the other parent, unless the offending parent establishes by a preponderance of the evidence that an award of custody to that parent is in the child’s best interest. Celia appealed the visitation order, arguing that the trial court could not circumvent section 3044 by characterizing its order granting physical custody as visitation. The Court of Appeals agreed: "The nature of any order must be determined based on the order’s legal effect, not the label the trial court attaches." The trial court therefore abused its discretion awarding Hugo equal time with the children without requiring him to establish that arrangement was in the children's best interest. That portion of the trial court's order was reversed and the matter remanded for further proceedings. View "Celia S. v. Hugo H." on Justia Law

A 14-year-old ran away from her mother’s home. Mother asked that she be taken into the custody of Child Protective Services, stating a need for therapy for herself, minor, and her younger daughter. The court ordered reunification services for “the child and to the mother.” At the six-month review the agency recommended that minor remain in out-of-home placement. Minor wanted to return home and participate in therapy. The agency and mother were concerned about minor’s previous molestation of her younger sister. The court ordered reunification services continued. At the 12-month review, the agency recommended and the court ordered that minor remain in out-of-home placement and reunification services be continued. Sister’s treating psychiatrist had recommended that visits between minor and her sister be suspended. At the 18-month review, the agency recommended that minor remain in out-of- home placement and that reunification services be terminated because her sister continued to be “triggered” by minor. The court expressed concern about failure to provide services specifically targeted at resolving the impediment to reunification, minor’s sexual abuse of her sister, and ordered services continued up to 24 months. The court of appeal affirmed. Although significant services were provided, they were not tailored to the family’s particular needs arising out of the unique circumstances. Amendments to Welfare and Institutions Code sections 361.5 and 366.221 did not restrict the court’s section 352 authority to extend reunification services to 24 months upon a showing of good cause. View "In re J.E." on Justia Law

Father appealed the juvenile court's order on his petition under Welf. & Inst. Code 388 giving his minor son sole discretion whether Father will have visits with him. The court concluded that where, as here, the juvenile court has not ordered reunification services because, under section 361.5, subdivisions (b)(1) and (d), the parent’s whereabouts were unknown for more than six months after the child’s out-of home placement, the parent has no right to visitation. Nonetheless, the court concluded that the juvenile court may order visitation in the exercise of its discretion under section 362, subdivision (a), on a finding that such visitation will serve and protect the child’s best interests. But, as is the rule when visitation is ordered as part of a reunification plan, the court concluded that the juvenile court cannot give the child sole discretion to determine whether such visitation will occur. Rather, once the juvenile court determines that visitation is in the child’s best interests, the juvenile court must, as part of its duty to protect and serve those interests, ensure that such visitation occurs under terms set by the juvenile court. Otherwise, the court concluded that, by placing sole discretion whether visitation will occur in the hands of the child, the juvenile court will have ceded to the child the determination whether visitation is in the child’s best interests. Accordingly, the court reversed the order and remanded for reconsideration. View "In re Korbin Z." on Justia Law

Mother and father shared custody of eight-year-old minor A.F. Both parents had a history of heroin addiction and both were on a methadone opiate replacement program. Carrie F., A.F.'s mother, appealed the juvenile court's orders declaring the minor to be a dependent of the court and removing him from parental custody. She argued the jurisdictional findings and removal orders were not supported by substantial evidence. After review, the Court of Appeal concluded that there was substantial evidence to support the juvenile court's findings and orders. Accordingly, the Court affirmed. View "In re A.F." on Justia Law