Justia Family Law Opinion Summaries

Mother appeals the juvenile court's order terminating her parental rights to Alissa and K.C., and identifying adoption as the permanent plan for her two daughters. The court concluded that the Department did not adequately investigate Mother's claim of Indian ancestry pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq. Therefore, the court remanded for the juvenile court to direct the Department to conduct a meaningful investigation into Mother's claim of Indian ancestry, including making genuine efforts to locate other family members who might have information bearing on the children's possible Indian ancestry. The court conditionally affirmed the order and remanded for compliance with the inquiry and notice provisions of the ICWA. View "In re Michael V." on Justia Law

David Pratt obtained court orders requiring his ex-wife, Cynthia Vedder, to pay child support and expenses. Vedder was the beneficiary of a trust established by her grandparents. Pratt filed a petition to compel Robert Ferguson, the trustee of the Borgert Vedder and Nellie A. Vedder Revocable Trust, to satisfy the orders from Vedder's share of the trust estate. The trial court denied the petition based on a clause in the trust that prohibited the Trustee from making certain distributions if they would become subject to Vedder's creditors' claims (the shutdown clause). After review, the Court of Appeal held that, notwithstanding the shutdown clause, Probate Code section 15305 gave the trial court discretion to order a trustee to make distributions of income and principal to satisfy the final child support orders. Pratt's petition also sought the imposition of a judgment lien on Vedder's interest in the trust estate to satisfy a community property judgment that he held against her. The trial court relied on the shutdown clause to deny the petition for a lien. Because Pratt was entitled to a judgment lien on the trust to satisfy the community property judgment, pursuant to the relevant provisions of the Probate Code and the Code of Civil Procedure, the Court of Appeal reversed that portion of the trial court's order too. View "Pratt v. Ferguson" on Justia Law

Marcos J., biological father of two-year-old Reed H., appealed orders dispensing with his consent to adoption and terminating his parental rights. Adoptive parents K.M. and E.M., filed a motion to dismiss the appeal as untimely. To resolve the issue, the Court of Appeal first examined the statutory authorization to appeal the order dispensing with father's consent, to determine the proper rule to apply in assessing the timeliness of the notice of appeal and then resolved the question of whether the notice of appeal was timely filed. The Court determined that where the trial court takes the matter under submission and issues a written order which is both filed and served on the parties, the time for filing a notice of appeal runs from the date of service of the written order or other notice to the parties of the ruling. Here, the trial court took the case under submission awaiting written closing arguments. The parties were fully aware that the court would issue a written ruling. The court issued its written ruling, which was filed and served on December 24, 2015. Time for filing a notice of appeal expired on February 22, 2016, 60 days later. Marcos J. did not file his notice of appeal until February 26, 2016. The notice of appeal was untimely. "Appellate jurisdiction depends upon a timely notice of appeal." (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) The motion to dismiss was granted. All other pending motions were deemed moot. View "Adoption of Reed H." on Justia Law

In late August 2015, the Orange County Social Services Agency (SSA) filed a dependency petition regarding minor, who was about one month shy of his third birthday. While at the emergency room for a cut on his finger, child was observed to have red sores and pustules around his genitals and buttocks. Also, mother reported that she had not taken minor for any well checks since he was one month old, and that minor had not received any vaccinations. The petition alleged that mother had unresolved anger management issues. In 2013 mother was convicted for domestic violence arising from an incident in which she had struck her ex-husband in the head five times and struck his vehicle repeatedly with a metal stick. The petition also alleged that mother had an unresolved substance abuse problem; a history of methamphetamine use. She reportedly had last used methamphetamine approximately two weeks prior to the incident in which minor cut his finger. Mother’s probation officer reported that mother was not enrolled in a drug treatment program, had multiple positive drug tests, and was not attending Narcotics Anonymous meetings. Being sent to jail marked a significant turning point for mother. The child was placed with his maternal aunt and uncle. The aunt and uncle indicated a desire to adopt minor if reunification with mother were to fail. Mother contested the recommendation, and an evidentiary hearing was held. Ultimately, the court sided with SSA, terminated reunification services, and set a hearing. The court described mother’s progress while out of custody as “minimal” and “hollow.” The court described mother’s visitation as “strikingly sporadic.” The court noted, however, that while in custody, “mother has taken advantage of every service . . . available to her, and that certainly is to be commended.” The court also “emphathize[d] with mother for a variety of reasons, her youth, the loss that she has suffered in her life.” Nonetheless, the court felt “constrained by an evaluation of the . . . statutory and case law . . . .” Mother’s petition for writ of mandate arose from the trial court’s order terminating reunification services and the “.26 hearing.” After review, the Court of Appeal concluded that the trial court’s finding regarding mother’s actions towards reunification was not supported by substantial evidence. As such, the Court issued the requested writ of mandate. View "J.F. v. Superior Court" on Justia Law

Scott R. appealed the termination of his parental rights to his biological daughter, A.B., under Family Code section 7822,1 which authorizes the termination of rights of a parent who "has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication . . . with the intent . . . to abandon the child." He argued that the one-year statutory period referred only to the year immediately preceding the filing of the petition for termination of parental rights, which precluded its application to him. Scott argued in the alternative that reversal was warranted in any event because: (1) he rebutted the presumption that he intended to abandon A.B.; (2) the termination of his rights was not in A.B.'s best interests; and (3) the juvenile court erred in determining that the Indian Child Welfare Act (ICWA) did not apply absent proof that a tribe he identified actually received notice as required under that statutory scheme. After review, the Court of Appeal rejected Scott's arguments and affirmed the order. View "In re A.B." on Justia Law

Defendant appealed from a Domestic Violence Prevention Act (DVPA), Fam. Code, 6200 et seq., restraining order prohibiting him from harassing or contacting respondent and compelling him to stay at least 500 yards away from her person, residence, and workplace. The court concluded that substantial evidence supports the trial court’s express finding that a dating relationship existed; substantial evidence supports the trial court's finding that defendant disturbed the peace of plaintiff, which is an act of abuse under the DVPA; and, even if the First Amendment issue were properly before the court, the court would reject defendant's argument that his ability to continue to engage in activity that has been determined after a hearing to constitute abuse under the DVPA is the type of "speech" afforded constitutional protection. Accordingly, the court affirmed the judgment (DVPA restraining order). View "Phillips v. Campbell" on Justia Law

In September 2015, the Trinity County Department of Health and Human Services (Department) filed a juvenile dependency petition as to then eight-year-old S.N. The petition alleged that mother "failed to protect [S.N.] in that she drove under the influence of alcohol with [S.N.] in the vehicle, resulting in a single car collision into the embankment, causing [S.N.] to suffer serious physical and emotional harm." The petition further alleged that mother "failed to provide [S.N.] with adequate medical care in that [S.N.] had ligature marks and abrasions on her chest as a result of a vehicle accident which were not immediately treated due to the mother telling [S.N.] she was not 'hurt enough' to require medical care." C.N., mother of minor S.N., appealed the juvenile court’s orders taking jurisdiction and later terminating jurisdiction after awarding custody to father at disposition. She contended the court failed to obtain a valid waiver of her right to a contested jurisdictional hearing. Mother further contended that trial counsel rendered ineffective assistance of counsel at the jurisdictional hearing. In the published portion of the Court of Appeal's opinion, the Court concluded the trial court failed to obtain a valid waiver. Because this error was found as harmless beyond a reasonable doubt, the Court of Appeal affirmed the juvenile court’s orders nevertheless. View "In re S.N." on Justia Law

Father appealed the juvenile court's jurisdiction finding pursuant to Welfare and Institutions Code section 300, subdivision (b), that he failed to provide his two children with the necessities of life, placing them at substantial risk of serious physical harm or illness. Father also appealed the juvenile court's disposition order of the same date removing the children from his and their mother's custody and ordering them suitably placed pursuant to section 361, subdivision (c). The court reversed the jurisdiction finding and removal order as to Father and remanded for the juvenile court to reconsider Father's request for custody of the children under the proper standard for noncustodial parents (section 361.2) and in light of Father's and the children's then-current circumstances. On remand, the juvenile court must also reconsider its determination that the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq., does not apply in this case. View "In re Andrew S." on Justia Law

Mother appealed the denial of her request for sole legal and physical custody of her minor daughter (Minor) and to reinstate child support from Father. After Father engaged in a physical altercation with his brother-in-law in a room where Minor was present, Mother sought and obtained a temporary protective order in Massachusetts, her state of residence, that barred Father from contacting Minor. Family Code section 3044 establishes a rebuttable presumption that joint or sole custody for a parent who has perpetrated domestic violence is not in a child‘s best interests. In this case, the court concluded that the family court erred in relying "in whole or in part" on section 3040's preference for frequent and continuing contact with the noncustodial parent. Therefore, the court reversed the order denying Mother's request for modification of the custody arrangement and remanded to allow the family law court to determine the issue under the proper legal framework. The court rejected Mother's contentions that the family law court exhibited gender bias and became embroiled in the proceedings. Finally, the court held that the family court‘s determination that Mother failed to carry her burden to reinstate child support payments was not an abuse of its discretion. View "Ellis v. Lyons" on Justia Law

Tracy and Jose married in 1996. They later separated. Tracy filed a petition for dissolution in 2011. In 2012, the superior court ordered temporary spousal support. The parties decided not to further litigate the case in the superior court and stipulated to the appointment of attorney Perkovich as judge pro tempore, under California Rules of Court 2.830-2.834. After Perkovich had served for two years, Tracy learned that Perkovich had not disclosed “in writing or on the record” professional relationships she had with lawyers in the proceeding, as required by the Rules. Tracy filed in the superior court a statement seeking disqualification. Perkovich failed to respond in accordance with statutory procedure. The presiding judge ordered her disqualified, holding that she was deemed to have consented to disqualification by her failure to file a consent or verified answer. The case was reassigned; discovery proceeded. The court delayed a hearing on Tracy’s motion to set aside orders made by Perkovich. The court of appeal held that Perkovich’s failure to contest the claims means that those factual allegations must be taken as true and that she was automatically disqualified. Her rulings are all void; the settlement agreement signed before her disqualification was tainted and may not be enforced. Perkovich’s conduct did not taint the proceedings before the superior court judge who replaced her. View "Hayward v. Super Court" on Justia Law