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VOLUME 17 | NUMBER 1 | WINTER 2017
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Recent Case Summaries
 

Family Law

Posted: Thursday, January 12, 2017
Gifts by a third party to a parent may be treated as income, for purposes of calculating child support, provided the gifts are a regular, recurrent monetary benefit.

Anna M. v. Jeffrey E.
filed Jan. 11, 2017, Second District, Div. Eight
Cite as 2017 S.O.S. 156
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Posted: Friday, January 6, 2017
Court did not err in ordering husband to pay spousal support, rejecting his argument that the 68-year-old wife, as the supported spouse, was obliged to come out of retirement and work.

In re Marriage of McLain
filed Jan. 6, 2017, Fourth District, Div. Two
Cite as 2017 S.O.S. 70
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Posted: Friday, December 16, 2016
Juvenile was subject of dependency proceedings in one county and delinquency proceedings in another. The delinquency court determined he should be deemed a ward, and not a dependent, without providing notice to his dependency attorney or to the dependency court as required by Welfare and Institutions Code Sec. 241.1 and California Rules of Court, rule 5.512. The dependency court had the authority to revisit the delinquency court's assessment under Sec. 241.1. 

In re Ray M.
filed Dec. 16, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 6479
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Posted: Wednesday, December 14, 2016
Where child was "thriving" in her grandmother's care, and father—who had been convicted of statutory rape of mother prior to dependency proceedings—did not see child after he was released from incarceration, did not have his name on birth certificate, stopped visiting after a four-month period during dependency proceedings, and did not attend conjoint therapy with child, there was no substantial evidence to support juvenile court's decision to grant grandmother legal guardianship, rather than adoption.

In re D.R.
filed Dec. 14, 2016, Second District, Div. Eight
Cite as 2016 S.O.S. 6396
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Posted: Monday, December 12, 2016
Social services agency's admitted error in seeking to terminate a dependency guardianship by filing a new Welfare and Institutions Code Sec. 300 petition, instead of a modification petition under Sec. 388, was harmless. The asserted prejudice was that father was prevented from obtaining reunification services and it was not reasonably probable the juvenile court would have awarded father such services if correct procedure had been followed.

B.B. v. Superior Court (San Diego County Health and Human Services Agency)
filed Dec. 9, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 6325
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Posted: Tuesday, December 6, 2016
Trial court did not abuse its discretion by treating wife's conduct in providing her son with alcohol to the extent he drank himself sick and forcibly cutting her daughter's hair as domestic violence, and denying spousal support on that basis. Trial court finding that wife would not suffer hardship if denied support was supported by evidence that she held several bank accounts jointly with her father. It is presumed that a person whose name is on a bank account has a beneficial interest therein.

In re Marriage of Schu
filed Dec. 6, 2016, Second District, Div. Six
Cite as 2016 S.O.S. 6227
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Posted: Monday, December 5, 2016
Trial court abused its discretion when it reduced father's monthly child support obligation from $17,500 to less than $10,000. Finding of material change in circumstances based on a decline in employment income could not be sustained in light of father's substantial assets, valued at over $67 million, to which trial court imputed an unreasonably low rate of return.

In re Marriage of Usher
filed Dec. 2, 2016, Second District, Div. Four
Cite as 2016 S.O.S. 6202
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Posted: Monday, December 5, 2016
Where minor had been in the dependency system for more than a year before a delinquency petition was filed against her, and had continued to "act out" despite receiving extensive services, including ongoing therapy and placement in a group home where she received assistance with developing coping mechanisms. Juvenile court did not abuse its discretion by declaring her a "dual status juvenile," subject to both delinquency and dependency jurisdiction.

In re J.S.
filed Dec. 5, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 6208
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Posted: Wednesday, November 30, 2016
Trial court finding that Department of Children and Family Services gave sufficient notice of dependency proceeding to Indian tribe was supported by substantial evidence where notice was given by certified mail containing information about child's mother, father, grandmother and uncle. DCFS, having no information concerning more distant relatives, was not required to search for such information, nor is notice concerning non-linear relatives required by the Indian Child Welfare Act or by California law.

In re Charlotte V.
filed Nov. 1, 2016, publication ordered Nov. 29, 2016, Second District, Div. Eight
Cite as 2016 S.O.S. 6051
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Posted: Wednesday, November 23, 2016
Where father provided court and social workers with information regarding child's possible eligibility for membership in Pomo tribe, Indian Child Welfare Act required that notice of the proceedings be given to all recognized Pomo tribes and bands, and failure to give such notice required reversal of order terminating parental rights.

In re O.C.
filed Nov. 22, 2016, First District, Div. One
Cite as 2016 S.O.S. 5928
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Posted: Friday, November 18, 2016
Evidence that mother slept in same bed as children aged seven months and 22 months; that she was, at the time, using illicit drugs instead of prescription medications to address her mental health issues; that as a result of such drug use and related lack of sleep, she was in an "altered state" that contributed to the death of the younger child from positional asphyxia. That father had drug issues of his own, placed the children in the bed with mother with knowledge of the danger supported taking of dependency jurisdiction over the older child based on parental neglect resulting in the death of a sibling.

In re Z.G.
filed Oct. 19, 2016, publication ordered Nov. 17, 2016, Fourth District, Div. Three
Cite as 2016 S.O.S. 5812
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Posted: Friday, November 18, 2016
Denial of continuance of permanency review hearing, based on what mother alleged was the inadequacy of reunification services, was not an abuse of discretion. Mother did not complain of such inadequacy at the six-month or 12-month review hearing and the juvenile court found that such continuance would not be in the best interests of the children.

N.M. v. Superior Court (Contra Costa County Children and Family Services Bureau)
filed Nov. 17, 2016, First District, Div. Four
Cite as 2016 S.O.S. 5820
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Posted: Thursday, November 17, 2016
Restraining order under the Domestic Violence Protection Act was supported by substantial evidence, notwithstanding that wife invited husband to a birthday party and had consensual sex with him prior to seeking the order. Wife testified that in one recent incident, husband grabbed her forcefully enough to bruise her arm, and then held her face into a mattress so she could not breathe. Wife also testified she was afraid of husband, and explained the consensual sex was part of their pattern of violence followed by attempted reconciliation.

In re Marriage of Fregoso & Hernandez
filed Oct. 21, 2016, publication ordered Nov. 16, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 5767
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Posted: Monday, November 14, 2016
Mother lacked standing to appeal order made at Welfare and Institutions Code Sec. 366.26 hearing placing child with relatives. Juvenile court finding there would not be substantial interference with child's sibling relationships if he was adopted was supported by evidence child's caregiver was committed to maintaining sibling contact.

In re Isaiah S.
filed Oct. 20, 2016, publication ordered Nov. 10, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 5699
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Posted: Wednesday, November 9, 2016
Juvenile court erred in citing Welfare and Institutions Code Sec. 361(c) as authority for its order removing child from father's physical custody following the court's finding there would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child if he were returned to the father's home. The statute didn't apply because the child wasn't living with father at the time the Sec. 300 petition was filed. Erroneous reliance on particular statute was harmless where the order could have been based on the broader grant of authority in Sec. 361(a) and Sec. 362(a).

In re Anthony Q.
filed Nov. 8, 2016, Second District, Div. Seven
Cite as 2016 S.O.S. 5650
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Posted: Thursday, November 3, 2016
While federal law prohibits a court from awarding a military spouse an interest in disability benefits that the former service member has elected to receive in lieu of retirement benefits, in which the spouse may be awarded an interest based on state law, federal law does not preclude an order compensating the spouse for the loss of retirement benefits. Where marital settlement agreement provides for a division of retirement benefits, but the service member subsequently waives those benefits in order to receive disability pay, there is a presumption that the parties intended that the spouse's rights be secure, other than in the event of the service member's death. Trial court erred in compensating spouse via an increase in support, rather than an award of money damages.

In re Marriage of Cassinelli
filed Nov. 2, 2016, Fourth District, Div. Two
Cite as 2016 S.O.S. 5525
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Posted: Thursday, November 3, 2016
Family Code Sec. 7612(c), which permits recognition of a "third parent" under specified circumstances, cannot apply in the absence of a preexisting parent-child relationship as defined by the Uniform Parentage Act.

In re M.Z.
filed Nov. 3, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 5535
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Posted: Wednesday, November 2, 2016
Welfare and Institutions Code Sec. 362.1 permits the dependency court to deny visitation based on potential harm to the minor's emotional well-being. There need not be a threat to the minor’s physical safety.

In re T.M.
filed Oct. 4, 2016, publication ordered Nov. 2, 2016, Third District
Cite as 2016 S.O.S. 5496
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Posted: Friday, October 28, 2016
Family court did not abuse its discretion by awarding mother $15,000 a month as child support, plus educational and related expenses payable directly to providers, rather than the $40,000 monthly called for by support guidelines. The trial court rationally deviated from the guideline and properly ordered support that was not only in the best interest of the child, but also provided a standard of living consistent with that of a financially privileged child.

S.P. v. F.G.
filed Oct. 27, 2016, Second District, Div. Five
Cite as 2016 S.O.S. 5391
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Posted: Friday, October 28, 2016
Family court has discretion to determine whether it would be inequitable to allow a child support payee to enforce a child support order for a period during which minor was living in the home of her grandparents.

In re Marriage of Wilson
filed Oct. 27, 2016, First District, Div. Four
Cite as 2016 S.O.S. 5396
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Posted: Monday, October 24, 2016
Family court lacks jurisdiction to determine presumed father status while a dependency petition is pending. Order determining mother's ex-husband, to whom she was married when child was born, to be a presumed father was void and dependency court erred in finding it was bound by it. Order determining biological father to be a presumed father, which was rendered and became final before dependency petition was filed, was binding on the dependency court absent a showing of changed circumstances. Order designating stepfather as a presumed father was supported by substantial evidence. Requirement that petitioner have held himself out as child's father does not require a claim of biological paternity.

In re Alexander P.
filed Oct. 21, 2016, First District, Div. One
Cite as 2016 S.O.S. 5240
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