Below are summaries of cases from April 3, 2019 to Oct 1, 2019 affecting child custody issues in California. AFCC California and the Insights staff are very grateful to Dawn for her hard work gathering this vital information for our membership.
County of San Diego Department of Child Services v. C.P.
County of San Diego Department of Child Services v. C.P. (2019) 34 Cal.App.5th 1, 245 Cal.Rptr.3d 748. In this case, the Fourth District reversed an order made by a San Diego County Commissioner adjusting F’s child support under Family Code §4007.5 over DCSS’s objection. It held that “(g)iven the unambiguous language in current section 4007.5 and the timing of C.P.’s child support order, incarceration, and request for adjustment of arrears, the statutory relief awarded is unavailable to C.P. under current section 4007.5.” It reasoned that
at the time of the repeal of former section 4007.5, C.P. did not have a vested right to the statutory relief he sought, and the Legislature did not include a saving clause when it enacted current section 4007.5. However, as we finally explain, because C.P.’s Request can be read to seek the adjustment in child support arrears under former section 4007.5, and because the parties have not briefed and the family court has not considered whether former section 4007.5 contains a saving clause, the family court should determine this issue in the first instance on remand.
…
By its express terms, current section 4007.5 applies only to child support orders “issued or modified on or after” October 8, 2015. (§ 4007.5, subd. (f); see fn. 8, ante.)
The original child support order is contained in the Judgment filed in January 2013—more than two and a half years before the potential application of current section 4007.5. Although the family court (temporarily) modified monthly child support to $0 in May 2016—i.e., at a time when current section 4007.5 was in force and, thus, potentially applicable—C.P. did not accrue any arrears after that date, since his monthly support obligation had become $0.
By its plain meaning, therefore, current section 4007.5 does not apply to the January 2013 Judgment, and C.P. did not accrue any arrears under the May 2016 modification order. Thus, current section 4007.5—the statute under which the parties and the family court proceeded—does not authorize the relief C.P. sought and the family court granted.
The panel also held that C.P. did not have any vested rights under the prior version of the statute, that not only was there not a “savings clause” in the legislation enacting current section 4007.5, but “on at least three bases, the Legislature communicated an intent not to save the statutory protections previously provided by former section 4007.5.” It concluded that “since the Legislature could have included a saving clause in current section 4007.5 but did not, and instead expressly repealed former section 4007.5 while recognizing an interruption in the statutory protections previously afforded by former section 4007.5, the only intent we, as a reviewing court, can discern is that, in enacting current section 4007.5, the Legislature intended to discontinue, not to save, rights under former section 4007.5. In its conclusion, the panel said that
(w)hile the family court’s ruling, including the stated reasons, was compassionate, it was nonetheless erroneous on the record before the court. At the time the Legislature repealed former section 4007.5, C.P. did not have a vested statutory right, and in enacting current section 4007.5, the Legislature did not intend to save the statutory protections previously available under former section 4007.5.
That said, C.P.’s Request, even though presented on a form intended for use under current section 4007.5, sufficiently put at issue a claim for an adjustment of arrears under former section 4007.5. Indeed, the family court ruled, albeit incorrectly, that C.P. had a vested right under former section 4007.5. What the family court did not consider, however, is whether former section 4007.5, as opposed to current section 4007.5, contained a saving clause that would allow C.P. the relief he sought in his Request. More specifically, the family court did not consider whether former section 4007.5’s “sunset provision” constituted an implied saving clause that affected C.P.’s Request for an adjustment of child support arrears. (See In re Pedro T., supra, 8 Cal.4th at pp. 1044-1052 [sunset provision of earlier statute subject to a three-year legislative experiment implied an intent to apply the statute to all convictions prior to date of repeal, even though they were not final prior to the sunset date].)
Accordingly, the family court should determine in the first instance, following proceedings at which the parties may present their views, whether former section 4007.5—under subdivision (i)’s sunset provision, or otherwise—contained a saving clause; and, if so, whether C.P. is entitled to the relief he sought in his Request.
Look v. Penovatz
Look v. Penovatz (2019) 34 Cal.App.5th 61, 245 Cal.Rptr.3d 777: In this case, the Sixth District affirmed a Santa Clara County trial court’s order denying Look reimbursement under Family Code §3950 for funds he expended for Penovatz’s minor son (C). C’s mother (M) had primary physical custody of C while she and C lived with Look in a domestic partnership. When they broke up, P sued Penovatz (C’s father) for reimbursement for supplying “necessaries” to C. Penovatz was under a child support obligation to M, which he paid. The court held that “(d)uring the relevant period, Penovatz (the child’s father) paid child support, pursuant to a court order, to the child’s mother, who cohabitated with Look. As Penovatz satisfied his child support obligation under the law, we conclude Look was not entitled to reimbursement under Family Code section 3950, and thus affirm the trial court’s judgment.”
On appeal, Look argued that
the trial court erred in applying section 3950 to find that Penovatz did not have to reimburse Look for amounts he spent on Christopher’s “necessaries” during the relevant period, primarily based on the court’s failure to consider the calculation of child support under the guideline formula set forth in section 4055. He contends that doing so injected a finding of fault into the case, rather than focusing on the best interests of the child, as required by the Family Code. He believes he has a right to reimbursement despite Rothert’s failure to seek modification of the child support order in the dissolution action, as Penovatz had a duty to support Christopher according to his means.
Disagreeing, the panel said that
Look does not dispute that Penovatz was paying to Rothert what was, under the operative court order, guideline child support; the dispute is whether the amount Penovatz was paying represented what would have been guideline if calculated during the period Christopher lived with Rothert and Look. Although factually distinct from the instant matter, caselaw discussing the predecessor to section 395014 indicates a third party does not have a right to reimbursement where the parent from whom he or she is seeking reimbursement is paying child support pursuant to a court order. … The proper remedy if the payor parent is not paying an appropriate amount of support pursuant to a courtorder is to seek modification of the child support order.
…
In the instant matter, Look knew Penovatz was paying Rothert $400 per month pursuant to a court order. He also knew Penovatz and Rothert attempted to negotiate modification of child support when Christopher moved in with him, but failed to reach a resolution of their dispute. In fact, Look testified at trial that it was “[his] decision not to force the decision on the support and just continue[] supporting [Christopher].” This case falls squarely within the rule set by Blair; the amount of support Penovatz owed under the support order is presumed to be “‘just and reasonable until it is reversed or modified by a subsequent order of the court.’” (Blair, supra, 86 Cal.App. at p. 687.) Despite knowing Rothert could seek modification in the dissolution action, she elected not to do so. Look not only knew Rothert could modify the child support order, he decided not to force the issue “and just continue supporting [Christopher].”
Look generally argues the trial court relied on “obsolete” authorities “completely out of phase with the modern law of child support,” although he did not specifically reference Blair or the other cases we cite in this opinion. While Blair, a case out of the Second District Court of Appeal, is an older case, it has never been overruled. “We acknowledge we are not bound by an opinion of another District Court of Appeal, however persuasive it might be. [Citation.] We respect stare decisis, however, which serves the important goals of stability in the law and predictability of decision. Thus, we ordinarily follow the decisions of other districts without good reason to disagree. [Citation.]” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.) We see no reason to disagree with Blair in the instant matter.
Our reading of Blair and the other cases does not undermine the modern policies of the statutory child support scheme in California, under which “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” (§ 3900.) Penovatz was performing his duty under the law, paying his obligation pursuant to the operative child support order. Rothert could have, and should have, sought modification of the child support order in the dissolution action, upon a showing of a material change of circumstances.
Finally, the panel held that the trial court did not err in denying additional discovery on the basis of the right of privacy in the requested financial information. “Given our conclusion that Look was not entitled to seek reimbursement based on Penovatz’s payment of child support pursuant to the order in the dissolution action, we agree the request for financial information from Look was not relevant to the claim or essential to the fair resolution of the lawsuit. The trial court did not abuse its discretion in this regard.”
In re Caden C.
In re Caden C. (2019) 34 Cal.App.5th 87, 245 Cal.Rptr.3d 797: In this case, the First District reversed a San Francisco County juvenile court’s order determining that M had established a beneficial relationship with C under W&I Code §366.26(c)(1)(B)(i) sufficient to justify a permanent plan of long-term foster care rather than the statutorily preferred plan of adoption. It held that the juvenile court’s reliance on the beneficial relationship exception in this case was an abuse of discretion. It said that
when the strength and quality of mother’s relationship with Caden in a tenuous placement is properly balanced against the security and sense of belonging adoption by Ms. H. would confer, no reasonable court could have concluded that a compelling justification had been made for forgoing adoption. We therefore reverse the juvenile court’s determination in this matter and remand with instructions to hold a permanency planning hearing pursuant to section 366.26, at which parental rights should be terminated and a plan of adoption ordered for Caden. We recognize, however, that the prior hearing in this matter occurred over a year ago and that childhood does not wait for the completion of our court process. Thus, it is possible that a significant change of circumstances may have occurred since the initial permanency planning hearing which points to a permanent plan other than adoption for this minor. We stress, though, that any deviation from the statutorily preferred plan of adoption must be in the minor’s best interests. (§388; see G.B., supra, 227 Cal.App.4th at p. 1157.) Finally, we note that mother’s love for Caden is palpable. It is our hope that, moving forward, this strong and abiding love will allow mother to fully support Caden’s clear need for a permanent alternative home.
County of San Diego Dept. of Child Support Services v. C.A.
County of San Diego Dept. of Child Support Services v. C.A. (2019) 34 Cal.App.5th 614, 246 Cal.Rptr.3d 358: In this case, the Fourth District reversed a San Diego County Commissioner’s order denying the Department’s request for child support from M for C, who was in her paternal grandmother’s legal custody. It held that the trial court incorrectly applied Family Code1 §3951(a), which eliminates a parent’s obligation to pay child support when a relative is voluntarily supporting the parent’s child and there is no compensation agreement between the parties. It held that the grandmother’s custody status was not “voluntary” as that term is used in the statute.
The trial court “concluded the lack of an agreement between Mother and Grandmother regarding child support payments left Grandmother without jurisdiction to pursue the payments,” stating that GM had voluntarily undertaken C’s support and care “without an agreement.” It denied SDDCSS’s request for a support order. On the Department’s appeal, the Fourth District reversed, holding that the trial court incorrectly interpreted Family Code §3591(a) and that “because, by its express terms, current section 4007.5 does not apply to C.P.’s Request, the family court erred in granting relief.”
The Department contends that once Grandmother was awarded custody of J.H., her support of J.H. was not voluntary because it was court-ordered. In the hearing on the matter, the trial court concluded that because Grandmother sought physical and legal custody, the subsequent court order had no impact on the voluntary nature of her actions. Thus, absent an agreement with Mother for Mother to pay child support, Mother was under no obligation to do so.
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At issue is the meaning of the word “voluntary” in section 3951, subdivision (a), which states that “[a] parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.” The plain meaning of the word “voluntary” is that the action is “done, made, brought about, undertaken, etc., of one’s own accord or by free choice.” (Random House Unabridged Dict. (2d Ed. 1993) p. 2131.) Placed in the context of section 3951, it means the relative must be supporting the child of his or her own accord or by free choice. Thus, if a relative is choosing to provide support for a child, the parent is not obligated to compensate the relative absent an agreement. (See §3951, subd. (a).)
Distinguishing Plumas County Dept. of Child Support Services v. Rodriguez (2008) 161 Cal.App.4th 1021, the panel said that
(t)he present case is not an example of the intrafamily support arrangement at issue in Plumas. Here, the Department’s request is for a noncustodial parent, Mother, to pay child support, while in Plumas the request was for the custodial parent to pay child support. (Plumas, supra, 161 Cal.App.4th at p. 1026.) The dissolution records here show Mother is a noncustodial parent ordered to pay $70 per month in child support. There is no subsequent documentation in the record that indicates that order was ever modified or rescinded; the Hawaii divorce decree outlining the obligations of the parties was enrolled as a foreign judgment in Maryland. In contrast, the mother in Plumas had no support payment obligations at the outset because she was the custodial parent. (Ibid.)
Additionally, unlike in Plumas, where the parents and the Andersons agreed to have the child reside with the Andersons (Plumas, supra, 161 Cal.App.4th at p. 1025), here there is no evidence in the record of an agreement between Mother and Grandmother. Instead, when Grandmother filed a petition in 2013 alleging it was in J.H.’s best interests that Grandmother be granted sole legal and physical custody, Mother failed to respond.
Plumas provides a quintessential example of “voluntary support” for the child because the Andersons were not under court order and held no legal obligation to continue providing care. (See Plumas, supra, 161 Cal.App.4th at p. 1030 [lack of legal duty to provide support makes child support “voluntary”].) Similarly, when Grandmother assumed the care of J.H. after Father moved to Maryland, she did so of her own accord. However, once the court issued its order awarding Grandmother sole legal and physical custody of J.H., she was no longer free to discontinue caring for J.H. At that point, Grandmother became legally obligated to “make long range decisions involving [J.H.’s] education, religious training, discipline, medical care, and other matters of major significance,” as well as to “provide a home for [J.H.] and to make the day-to-day decisions required . . . .” (Taylor v. Taylor (Md.Ct.App. 1986) 508 A.2d 964, 967.) Once the court awarded Grandmother full legal physical custody, her support ceased being “voluntary.”
Moreover, Grandmother’s assumption of sole custody of J.H. did not eliminate Mother’s legal obligation to support J.H. because the court’s order did not terminate parental rights. … “A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” (§ 4053, subd. (a).) Absolving Mother of her obligation to support J.H. is inconsistent with her parental duty to support her child (§ 3900) and the state’s public policy of ensuring adequate child support (Bodo, at p. 385), and it would discourage relatives from seeking an award of legal and physical custody when a child is in need.
In re Marriage of Kent
In re Marriage of Kent (2019) 35 Cal.App.5th 487, 247 Cal.Rptr.3d 466: In this case, the Fourth District reversed a San Diego County judge’s order modifying a child custody and support order issued by a North Carolina court without first determining whether California had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, §3400 et seq.). It held that “based on the record before the family court at the time it ruled, the court lacked jurisdiction to modify the North Carolina order.”
On August 2, 2017, the General Court of Justice, District Court Division, of the State of North Carolina, County of Iredell (North Carolina Court) filed a “Consent Order Regarding Modification of Child Custody, Permanent Child Custody, and Permanent Child Support” (North Carolina Order) in case No. 17-CVD-835, entitled Kent v. Kent (North Carolina Action). The North Carolina Order is 14 single-spaced typewritten pages, containing an introduction, 18 numbered paragraphs of Findings of Fact, 7 numbered paragraphs of Conclusions of Law, and more than 65 separately numbered paragraphs containing detailed orders regarding custody, visitation, support, and raising the children.
In February 2018, Mother initiated the underlying California family law action by filing certain declarations and registering the North Carolina Order in the North County Division of the San Diego County Superior Court, as required by the UCCJEA. (§§ 3445, 3429.)
A month later, in March 2018, Mother filed a request in the California action for an order modifying 10 separate items contained in the North Carolina Order (RFO). The only one at issue in this appeal is Mother’s request to delete a provision that limited each parent’s contact with certain adults when the children were visiting that parent (Visitor Provision). Indeed, Mother’s appeal is directed only to the last two sentences of the Visitor Provision—i.e., those dealing with a specific potential visitor, A.R. (A.R. Provision).
The family court heard oral argument in May 2018. In the minutes from the hearing, the court “note[d]” that “[t]he parties agree that California has UCCJEA jurisdiction” and that “Father resides in North Carolina.” The parties’ settled statement of the oral proceedings discloses: The parties stipulated that “California has jurisdiction to make custody orders pursuant to California Family Code section 3048”; the parties stipulated and the family court “noted” that Father resides in North Carolina; and “Mother’s counsel argued that the court had already determined it had jurisdiction over child custody and visitation,” although there is no indication as to when or how this determination occurred.
The family court filed a findings and order after hearing (FOAH), which granted in part and denied in part Mother’s RFO—expressly granting in part and denying in part Mother’s request to delete of the Visitor Provision—without any mention of the UCCJEA or jurisdiction to modify the North Carolina Order.
On Molly’s appeal, the Fourth District reversed, holding that the trial court erred in issuing the order because it failed to determine whether California had jurisdiction under the UCCJEA.
Once an out-of-state custody order is registered in California under the UCCJEA—as Mother did in initiating the underlying action here—as a matter of full faith and credit, the order determining child custody is enforceable in California as a California judgment by way of any relief normally available under California law. (§3441 et seq.) However, as an independent consideration, there is the additional issue of whether California has jurisdiction to modify an out-of-state custody order: “A court of this state shall recognize and enforce, but may not modify, except in accordance with [section 3421 et seq.], a registered child custody determination of a court of another state.” (§ 3446, subd. (b), italics added.) That is because, in cases like the present one,” ‘once the court of an appropriate state [citation] has made a “child custody determination,” that court obtains “exclusive, continuing jurisdiction[.]” ‘ ” (Fernandez-Abin, supra, 191 Cal.App.4th at p. 1040, italics added.) As such, absent the requisite determination outlined in the immediately following paragraph, “the court of another state, including California, ‘[c]annot modify the child custody determination[.]’ ” (Ibid.; see §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b).)
Except in emergency situations not present here (§ 3424), section 3423 directs that a California court may not modify an out-of-state custody order unless both of the following have been established:
1. California has jurisdiction to make an initial determination under section 3421, subdivision (a)(1) or (2); and
2. Either—
a. The out-of-state court has determined either that it no longer has exclusive continuing jurisdiction under section 3422 or that California would be a more convenient forum under section 3427, or
b. The out-of-state court or a California court determines that the child and the child’s parents do not presently reside in the out-of-state forum.
If a California court determines from either party’s first pleadings related to the foreign custody order under section 3429 (at times, section 3429 documents) that a child custody proceeding has been commenced in an out-of-state forum having jurisdiction “substantially in accordance with” the UCCJEA, then the California court “shall stay” its proceeding and communicate with the other state’s court. (§ 3426, subd. (b), italics added.5) “The aim is for the two courts together to determine which of them is the ‘more appropriate’ forum to exercise jurisdiction.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 7:129, p. 7-60.) If the out-of-state court having jurisdiction “substantially in accordance with” the UCCJEA does not determine that the California court is a “more appropriate” forum, then the California court “shall dismiss” its custody proceeding. (§ 3426, subd. (b).)
In the present case, both parties’ attorneys and the family court were fully and formally advised of the North Carolina Action generally and the North Carolina Order specifically. Nonetheless, the court ruled on Mother’s RFO without first determining whether it had modification jurisdiction under the UCCJEA. The family court’s notation in its minutes that “[t]he parties agree that California has UCCJEA jurisdiction” is insufficient to establish modification jurisdiction, because ” ‘[t]here is no provision in the UCCJEA for jurisdiction . . . by stipulation[.]’ ” (Fernandez-Abin, supra, 191 Cal.App.4th at p. 1040.) Further, the parties’ stipulation and the court’s finding that Father resides in North Carolina necessarily preclude any suggestion that the California court was authorized to determine it had modification jurisdiction under the UCCJEA without communicating with the North Carolina Court. (§ 3423, subd. (b).)
Accordingly, the family court erred in considering Mother’s RFO. Because of the pendency of the North Carolina Action, the North Carolina Order, and the uncontradicted evidence in the section 3429 documents that Father resided in North Carolina, the California family court was required to stay the California proceedings and communicate with the North Carolina Court. (§3426, subd. (b).) In short, at the time the family court ruled on Mother’s RFO, the court did not have modification jurisdiction under the UCCJEA, and on that basis the FOAH must be reversed.
Greiner v. Keller
Greiner v. Keller (2019) 36 Cal.App.5th 332, 248 Cal.Rptr.3d 444: In this case, the First District reversed a Sonoma County trial court’s denial of childcare costs to a custodial parent under Family Code §4062. “(T)he trial court ruled mother’s request exceeded the scope of section 4062 because the statute does not allow an award of childcare costs incurred while a parent pursues education to expand existing employment skills if a parent’s currently marketable skills were sufficient to secure employment or were capable of being used to secure employment even if being underutilized.” In reversing, the panel held that “the trial court failed to give due consideration to the statute’s plain language, which is no way restricts ‘employment’ or ‘employment skills’ to current employment, as well as the Legislature’s general principles governing child support awards. As section 4062 allows a court to consider a request for childcare costs related to reasonably necessary education for prospective employment to allow a custodial parent to become self-supporting without the need for public assistance, we reverse the order and remand the matter with directions to the trial court to reconsider mother’s request on its merits.”
The panel also said that
this case exemplifies why the Legislature enacted section 4062, which provides for a parent to secure employment-related childcare costs. Were we to read the statute, as did the trial court, so as to preclude mother’s request where she is seeking childcare costs to achieve employment skills reasonably necessary for her to become self-supporting without public assistance, we would fail to give due consideration to the Legislature’s advisements that parents are to provide child support in accordance with their abilities, the financial needs of the children should be secured through private financial resources as much as possible, and children are entitled to sufficient support reflecting the state’s high standard of living and high costs of raising children here.
It remanded the case to the trial court to reconsider Kimberlee’s request, stating that when it did so, “(t)he court should consider, among other things, whether mother’s educational endeavors were ‘reasonably necessary education or training for employment skills,’ whether mother actually incurred reimbursable childcare costs associated with her educational endeavors, and the amount and appropriate apportionment of any childcare costs.”
In re C.M.
In re C.M. (2019) 38 Cal.App.5th 101, 250 Cal.Rptr.3d 390: In this partially published opinion, and a case of first impression, the Second District affirmed a Los Angeles County juvenile court’s order awarding Father and Mother joint legal custody of C as part of an order terminating dependency jurisdiction. It held that Family Code §3044 and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under section 300 et seq. Here is its reasoning:
Father has not made any legal argument about why we should depart from the long line of precedent that the Civil and Family Codes are not applicable in dependency cases unless expressly stated. Instead, father simply argues that the plain language of Family Code section 3044 creates a rebuttable presumption in any case where a court has made a finding that a parent seeking joint physical or legal custody has perpetrated domestic violence “against the other party seeking custody of the child, or against the child or the child’s siblings,” within the past five years. (Fam. Code, § 3044, subd. (a).)
…
Family Code section 3044 is part of an overall scheme set forth in the Family Code to govern various considerations that impact custody decisions under the best interests of the child standard, including whether any protective or restraining orders are in effect, or whether there have been findings that domestic violence has occurred, in which case “special considerations come into play under the Family Code. (See, e.g., §§ 3011, subds. (a)–(b), 3020, subds. (a), (c), 3044.)” (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.) Family Code section 3044 is included in Part 2 (“Right to Custody of Minor Child”) in Division 8 (“Custody of Children”) of the Family Code. Part 2 is made expressly applicable to custody disputes only within specified proceedings, including: proceedings for dissolution or nullity of marriage; proceedings for legal separation; actions by a spouse under Family Code section 3120 for exclusive custody of the children of a marriage; proceedings under the Uniform Parentage Act; actions by the district attorney for enforcement of support; and proceedings brought under the Domestic Violence Prevention Act. (Fam. Code, § 3021.) Part 2 is not applicable to custody decisions made in dependency proceedings under the Welfare and Institutions Code. (Id.)
The inapplicability of Family Code section 3044 to dependency proceedings is also made clear by provisions relating to issuance of domestic violence restraining orders under the Welfare and Institutions Code. When a juvenile court issues a restraining order pursuant to section 213.5, and then makes an order for custody pursuant to that section, the juvenile court is required to “follow the procedures specified in subdivisions (c) and (d) of Section 6323 of the Family Code,” relating to ensuring safety in making orders relating to the time, place, and manner of visitation with children. (§ 213.5, subd. (k).) Notably, section 213.5 does not require the juvenile court to follow any other provisions of the Family Code—including Family Code section 3044—in making custody orders relating to domestic violence restraining orders.
The court in In re Jennifer R., supra, 14 Cal.App.4th 704, explained why the juvenile court is not bound to follow Family Code provisions regarding custody determinations. “Although both the family court and the juvenile court focus on the best interests of the child significant differences exist. In juvenile dependency proceedings the child is involved in the court proceedings because he or she has been abused or neglected. Custody orders are not made until the child has been declared a dependent of the court and in many cases, . . . the child has been removed from the parents upon clear and convincing evidence of danger. The issue of the parents’ ability to protect and care for the child is the central issue. The presumption of parental fitness that underlies custody law in the family court just does not apply to dependency cases. Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.” (In re Jennifer R., at p. 712, italics added.) We see no basis to depart from the sound reasoning of the cases that conclude Family Code provisions are inapplicable in dependency cases unless expressly stated.
In re E.W.
In re E.W. (2019) 37 Cal.App.5th 1167, 250 Cal.Rptr.3d 372: In this case, the Second District affirmed a Los Angeles County Juvenile Court Referee’s “orders declaring her son, E.W., a dependent of the court; removing the child from the care, custody and control of the mother; releasing the child to the home of the father; terminating jurisdiction with a custody order awarding the father sole legal and physical custody; and ordering that the mother have no visitation with the child.” W argued that the court had no jurisdiction to make the orders under the UCCJEA, but the panel held that she was mistaken. It said that
Mother has misconstrued the UCCJEA. It does apply, in the sense that it governs the jurisdiction of a California court to make a child custody determination, but in this case its application plainly results in jurisdiction in California. The UCCJEA specifies the circumstances under which a California court “has jurisdiction to make an initial child custody determination” (§ 3421, subd. (a), italics added), and this depends on the home state of the child. As pertinent here, a California court “has jurisdiction to make an initial child custody determination only if . . . . [¶] . . . [t]his state is the home state of the child on the date of the commencement of the proceeding . . . .” (§ 3421, subd. (a)(1).) “ ‘Home state’ means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.” (§ 3402, subd. (g).)
The UCCJEA further specifies that a California court that has made a custody determination consistent with section 3421 “has exclusive, continuing jurisdiction over the determination” until either of two delineated circumstances occur: “(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships. [¶] (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.” (§ 3422, subd. (a)(1) & (2).) Neither of those circumstances has occurred in this case.
Here, the dependency court’s custody determination was not the “initial child custody determination.” (§ 3421, subd. (a).) The initial child custody determination was made by the court in Orange County on January 2, 2014.
Mother does not suggest, nor could she, that California was not the child’s home state when the initial custody determination was made. In short, in this case the child’s “home state” when the dependency proceeding began does not matter, because a California court had already made the initial child custody determination, consistent with section 3421, in January 2014, and California has exclusive, continuing jurisdiction.
Doe v. Department of Children and Family Services
Doe v. Department of Children and Family Services (2019) 37 Cal.App.5th 675, 250 Cal.Rptr.3d 62: In this case, the Second District affirmed a Los Angeles County court’s judgment of nonsuit against P, who was raped and sexually assaulted while in foster care. She “sued the Los Angeles County Department of Children and Family Services (DCFS) as well as a private foster care agency for negligence and failure to perform statutorily mandated duties, which she claims resulted in sexual abuse by her foster mother’s two sons.” The trial court granted nonsuit “finding Defendants did not have a duty to protect against criminal acts of third parties where there was no knowledge of their propensities or that criminal misconduct was imminent.” It amended the trial court’s award of $114,428.72 against P by reducing it by $6,988.37 for disallowed costs.
In re J.P.
In re J.P. (2019) 37 Cal.App.5th 1111, 49 Cal.Rptr.3d 916: In this case, the Sixth District affirmed a Santa Clara County juvenile court’s order granting M’s ex-boyfriend visitation with her son. It held that the court has the authority to order visitation between a child and a nonparent over the parent’s objections under W&I Code §362(a), “which grants the juvenile court considerably broad authority to ‘make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child, including medical treatment, subject to further order of the court.’ Section 362, subdivision (d) also provides that ‘[t]he juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section. . . .’”
In re A.M.
In re A.M. (2019) 37 Cal.App.5th 614, 249 Cal.Rptr.3d 817: In this case, the Second District affirmed a Los Angeles County juvenile court’s two-year restraining order against Father, who sexually abused his daughter, and prohibiting him from having any contact with her. It held that the fact that his continuous sexual assault of his daughter occurred only “over her clothing does not discount such heinous invasions. The evidence was sufficient to establish that a restraining order was necessary to ensure minor’s safety. The juvenile court did not abuse its discretion.” F argued that “there was no credible evidence that an order restricting all communication between minor and him was necessary to ensure her safety. He cites evidence of minor’s mental resiliency despite the sexual abuse. The suggestion is that because minor has been resilient, she is strong enough to have contact with him.” The panel disagreed.
In re Harley C.
In re Harley C. (2019) 37 Cal.App.5th 494, 249 Cal.Rptr.3d 783: In this case, the Second District reversed a Los Angeles County juvenile court that refused to permit M to testify or call witnesses at a contested disposition hearing because her counsel had not filed a joint trial statement as required by a local rule. The panel held that the local rule is invalid and reversed the juvenile court’s dispositional orders terminating jurisdiction and awarding sole legal and joint physical custody of the minors to Father, with visitation to Mother. The opinion discusses the scope of the courts’ power to establish local rules, cites Elkins and holds that “Local Rule Seven of the McCourtney Courthouse Policies, Effective August 13, 2018, Is Invalid” because it was adopted in violation of state law and conflicts with Elkins. It also said that “(w)hile the local rule here is unenforceable because it conflicts with California law and it was adopted in violation of the Government Code and the California Rules of Court, California courts retain the ability to manage the litigation before them by means of case-specific orders, provided that those orders are consistent with California law and afford litigants due process.”
Christensen v. Lightbourne
Christensen v. Lightbourne (2019) 7 Cal.5th 761, 249 Cal.Rptr.3d 281: In this case, the California Supreme Court held that a household member’s income that is used to pay child support for a child living in another household counts as income “reasonably anticipated” to be “received” by the paying household within the meaning of Welfare and Institutions Code section 11265.2 for purposes of determining eligibility for state welfare benefits. It held that “nothing in the text of the CalWORKs statute exempts or excludes funds used to pay child support from the definition of income” and that “the Department’s determination that funds garnished to pay child support for the benefit of a child living in another household are not exempt from the paying household’s income for purposes of determining its eligibility for or amount of CalWORKs aid was a reasonable exercise of its delegated lawmaking authority and was therefore valid.”
In re J.F.
In re J.F. (2019) 39 Cal.App.5th 70, 251 Cal.Rptr.3d 602: In this case, the Fourth District affirmed a San Bernardino County juvenile court’s judgment denying F’s section 388 petition requesting family reunification services and increased visitation with his sons. It held:
Although the order denying father’s petition is appealable, and father filed his notice of appeal within the time to appeal from that order, the notice of appeal expressly stated father was appealing only from the order terminating his parental rights to the boys that was entered 44 days after denial of his petition. Because father’s notice of appeal is clear and unambiguous about what he meant to appeal, we cannot liberally construe it to embrace the omitted order denying the section 388 petition and, hence, we lack jurisdiction to review that order. And, because father presents no reasoned argument why the juvenile court erred by terminating his parental rights, father has waived his challenge to the sole order properly before us. Therefore, we must affirm.
As stated ante, a notice of appeal must be construed liberally to encompass an order not expressly mentioned only when it is “‘reasonably clear'” the appellant intended to appeal from the unmentioned order. (In re Joshua S., supra, 41 Cal.4th at p. 272.) To repeat, the policy of liberal construction “does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.” (Filbin v. Fitzgerald, supra, 211 Cal.App.4th at p. 173, italics added.) Father’s notice of appeal in this case is very specific and manifests a “‘clear and unmistakable'” intent to appeal solely from the March 7, 2019 order terminating his parental rights and not from the order entered 44 days earlier denying his second section 388 petition.
Although we too strive to be pragmatic within the settled limits of our duty to liberally construe notices of appeal, applying the rule from Madison W. in a case like this-where the order denying the section 388 petition was entered many days before the juvenile court terminated parental rights, and the notice of appeal from the termination order did not mention whatsoever the earlier order or the date it was entered-goes “‘beyond liberal construction’ to view an appeal from one order as an appeal from a ‘further and different order.'” (Baker v. Castaldi, supra, 235 Cal.App.4th at p. 225.) Moreover, although the Madison W. court stated it was not condoning poor appellate practices (Madison W., supra, 141 Cal.App.4th at pp. 1450-1451), to the extent the rule in that case could be read to apply to cases such as this one, it has the practical effect of encouraging such poor practices.
In re Nicole S.
In re Nicole S. (2019) 39 Cal.App.5th 91, 252 Cal.Rptr.3d 82: In this In this case, a First District majority held that attorney fees under CCP §1021.5 are not recoverable in a juvenile dependency proceeding and affirmed the juvenile court’s denial of the ward’s request for attorney fees. The majority held that
the roles played by social services agencies in dependency proceedings are hardly analogous to that of an opposing party in public interest litigation. Applying section 1021.5 in juvenile dependency cases could seriously impede the agency’s ability to perform its statutorily-mandated functions by exposing it to potentially significant financial liability. Moreover, as evidenced by cases previously cited, interim writ proceedings in dependency cases typically challenge decisions that the court itself has made. Here, for example, Nicole initiated a writ petition to challenge the court’s evidentiary decision. While the agency functions as an arm of the court, the opposite is not true, which highlights another reason why it would be inaccurate to cast the agency as an opposing party within the meaning of section 1021.5. Finding no indication that the Legislature intended such anomalies, we cannot find that authorizing section 1021.5 fee awards in dependency cases would be consistent with the best interests of California’s dependent children and nonminor dependents.
In a concurrence and dissent, Justice Streeter said that
(t)he majority’s premise—that section 1021.5 would be injurious to what it views as a self-contained system of compensation for indigent litigants in dependency proceedings—is simply not accurate. Dependency practice is a specialty field, requiring unique competence, and the statutory compensation system for appointed counsel within the field rightly demands that lawyers who receive such appointments possess the necessary expertise. As I see it, the availability of section 1021.5 fees would promote, not detract from, that objective. Sometimes issues arise that well-trained dependency attorneys do not encounter with any frequency or do not have the resources to pursue. In those situations, section 1021.5 ought to be available as a “carrot” to attract talent from other fields.
Whether there is some sort of “gap” in the available appointive compensation scheme for dependency counsel seems beside the point. The issue—which is equally true in the related statutory scheme for representation of indigent clients in criminal cases—is that the amount of available compensation lags so far behind what lawyers can earn in other, adjacent fields, that there is sometimes a built-in disincentive to do anything for a client beyond what is sure to be compensable. It may not be realistic to “level the playing field” between the type of representation a rich person gets and a poor person gets, but the potential availability of section 1021.5 fees is at least a nod in that direction.
S.C. v. G.S.
S.C. v. G.S. (2019) 38 Cal.App.5th 591, 250 Cal.Rptr.3d 696: In this case, the Sixth District reversed a trial court that gave F credit against his child support arrearages for the years between 1998 and 2005 when he was incarcerated. It held that “(a)lthough legislation enacted in 2010 and 2015 suspended the accrual of child support for incarcerated parents, these statutes do not apply retroactively. Father’s child support order was issued in 1995, and he did not seek modification of it either when he was committed to prison or upon his release. The trial court lacked the authority in 2016 to reduce father’s arrears by the amount father had accrued during his incarceration from 1998 to 2005. We therefore reverse the order.”
Dawn Gray is a Certified Specialist in Family Law. Since 1994, her practice has been dedicated to research and writing projects for family law and civil attorneys. She works with many family law attorneys throughout the state on their cases, doing research, drafting pleadings and appellate briefs. She is a past president of ACFLS and is currently on its Amicus committee. She is also a past member of FLEXCOM, serving as the Executive Editor of the Family Law News. She gives frequent presentations and continuing education classes on family law issues. Dawn is also the principal author of the 11-volume series “Complex Issues in California Family Law.” She is a member of the editorial board of the California Family Law Monthly and a frequent contributor to family law publications throughout the state.