Latest 13 Cases This Week: Smith v. Smith (5th Cir.), In re J.P. (Cal. Ct. App.), Tilson v. Tilson (Neb.)

Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

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Smith v. Smith

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-11310

Opinion Date: September 25, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Family Law, International Law

Father filed suit under the Hague Convention, alleging that mother wrongfully removed their children from Argentina to Texas. While this appeal was pending, the Supreme Court held in Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020), that the correct approach to habitual residence is to examine the totality of the circumstances. The Fifth Circuit applied the totality-of-the circumstances standard established in Monasky to the district court's findings and held that the totality of the circumstances shows that the children did not habitually reside in Argentina. In this case, the district court found, among other things, that both parents and all the children were born in the United States and continued to be United States citizens; father's work contract in Argentina was at-will; mother continued to own property in Texas; the children attended an American school in Argentina; and none of the parties owned any property in Argentina.

In re J.P.

Court: California Courts of Appeal

Docket: H047586(Sixth Appellate District)

Opinion Date: October 1, 2020

Judge: Eugene M. Premo

Areas of Law: Civil Procedure, Family Law

A July 2017 petition under Welfare and Institutions Code 300(b)(1) concerned J.P., born in 2013. J.P.’s mother had been arrested for DUI. J.P. and his younger half-brother, A.A., were taken into protective custody. The court found mother’s ex-boyfriend Albert to be A.A.’s presumed father and found L.P. to be J.P.’s presumed father. Albert indicated that he wanted to be designated as J.P.’s presumed parent. Mother opposed the request. Police had responded to disturbances between mother and Albert. In November 2017, J.P. and A.A. were moved from foster care to the home of Albert’s parents. L.P.'s whereabouts were unknown; he had not visited J.P. The Department reported positive interactions between the children and Albert. In September 2018, Albert asked the court to recognize him as J.P.’s presumed father. The court determined that Albert did not qualify as J.P.’s presumed father under Family Code 7611(d) but ordered weekly visitation between J.P. and Albert. Months later, Albert renewed his request to be considered a de facto parent to J.P. The court stated that after another hearing, it believed that Albert qualified as a presumed parent to J.P. Mother did not dispute the court’s authority to revisit its prior order. The Department and J.P.’s counsel supported Albert's motion. The court of appeal affirmed the juvenile court’s order granting Albert presumed parent status for J.P. The juvenile court had authority under Welfare and Institutions Code 3851 to reconsider its prior order.

Tilson v. Tilson

Court: Nebraska Supreme Court

Citation: 307 Neb. 275

Opinion Date: September 25, 2020

Judge: Papik

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court that modified the decree dissolving Jayson Tilson's marriage, holding that there was no merit to Jayson's claims on appeal. In 2015, the court entered a decree of dissolution ordering the continuation of the maternal grandmother's legal and physical custody as to Jayson's three minor children. In 2017, Jayson filed a complaint requesting that the decree be vacated as void and that, in the alternative, the decree be modified to place custody of the children with him. The district court rejected Jayson's argument that the original decree was void, ordered that custody should remain with the grandmother, but modified the decree as to parenting time and child support. The Supreme Court affirmed, holding that there was no error on the part of the district court.

Petition of New Hampshire Division for Children, Youth & Families

Court: New Hampshire Supreme Court

Docket: 2019-0535

Opinion Date: September 30, 2020

Judge: Donovan

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law

The New Hampshire Supreme Court accepted review of the Division for Children, Youth and Families' (DCYF) petition in its original jurisdiction to determine whether the superior court erred in denying DCYF's motions to dismiss respondent's claims on statute of limitation grounds. While under the care of DCYF, separate individuals sexually assaulted respondent on two separate occasions. The first assault occurred in February 2011, when respondent was approximately 12 years old, after DCYF placed her in the care of a foster family. While living with the foster family, a neighbor’s cousin raped respondent. The second assault occurred in June 2015 when respondent was approximately 16 years olf, after DCYF placed her in a children's home. An employee of the children’s home inappropriately touched, threatened, and raped respondent. In November and December 2018, the respondent filed two complaints alleging, in relevant part, claims of negligence, breach of fiduciary duty, and vicarious liability against DCYF, all relating to the sexual assaults that occurred while she was in DCYF custody. DCYF moved to dismiss the claims, arguing that they were barred by the three-year statute of limitations provided in RSA 541-B:14, IV. The respondent objected and argued, among other things, that she could not have discovered DCYF’s potential legal fault until December 19, 2016, when an independent audit of DCYF was publicly released that detailed DCYF’s various shortcomings regarding child welfare and safety. The Supreme Court determined the discovery rule in RSA 508:4, I (2010) applied to actions brought under RSA chapter 541-B (2007 & Supp. 2019), and, accordingly, affirmed the trial court’s order and remanded for further proceedings.

In re E.B.

Court: North Carolina Supreme Court

Docket: 429A19

Opinion Date: September 25, 2020

Judge: Earls

Areas of Law: Family Law

The Supreme Court reversed the judgment of the court of appeals affirming the order of the trial court terminating Father's parental rights on the grounds of willful abandonment, holding that Petitioners failed to prove by clear, cogent, and convincing evidence that Father willfully abandoned his child. The trial court entered an order terminating Father's parental rights on grounds of neglect, failure to make reasonable progress, and willful abandonment. The court of appeals affirmed the termination order on the willful abandonment ground. The Supreme Court reversed, holding (1) Petitioners failed to prove by clear, cogent, and convincing evidence that Father willfully abandoned his child; and (2) Petitioners failed to prove that any other ground existed to terminate Father's parental rights.

In re J.A.M.

Court: North Carolina Supreme Court

Docket: 7PA17-3

Opinion Date: September 25, 2020

Judge: Robin E. Hudson

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court terminating Mother's parental rights in her daughter, holding that the issues raised by Mother and her counsel were meritless. The district court adjudicated grounds for termination under N.C. Gen. Stat. 7B-1111(a)(1), concluding that Mother had previously rejected the child and that there remained a high probability of the repetition of neglect. The court further concluded that a terminating Mother's rights was in the child's best interests. Mother appealed from the termination order, and her counsel filed a no-merit brief on her behalf. The Supreme Court affirmed, holding that the termination order contained sufficient findings of fact to establish the existence of a statutory ground of neglect for terminating Mother's parental rights and that the district court judge did not abuse her discretion by concluding that it was in the child's best interests that Mother's parental rights be terminated.

In re J.D.C.H.

Court: North Carolina Supreme Court

Docket: 401A19

Opinion Date: September 25, 2020

Judge: Robin E. Hudson

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating Father's parental rights to his two children on the ground of willful abandonment, holding that the trial court did not abuse its discretion in terminating Father's parental rights. Mother filed petitions to terminate Father's parental rights in both children on the grounds of willful failure to pay a reasonable portion of the cost of the children's care and willful abandonment. The trial court concluded that grounds existed to terminate Father's parental rights based on willful abandonment and that termination was in the children's best interests. The Supreme Court affirmed, holding that the findings of fact supported the trial court's conclusion that Father willfully abandoned the children.

In re L.M.M.

Court: North Carolina Supreme Court

Docket: 21A20

Opinion Date: September 25, 2020

Judge: Davis

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the trial court terminating Mother's parental rights to her son, holding that the trial court's findings of fact and the evidence supported the conclusion that Mother willfully abandoned her son within the meaning of N.C. Gen. Stat. 7B-1111(a)(7). Specifically, the Supreme Court held that because the evidence and the court's findings showed that Mother undertook no action to express love, affection, and parental concern for the child during the relevant six-month period, the trial court did not err in determining that grounds existed under section 7B-1111(a)(7) to terminate Mother's parental rights.

In re S.J.B.

Court: North Carolina Supreme Court

Docket: 409A19

Opinion Date: September 25, 2020

Judge: Cheri Beasley

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating Mother's parental rights, holding that the trial court did not abuse its discretion in concluding that it was in the child's best interest to terminate Mother's parental rights. After a hearing, the trial court entered an order terminating Mother's parental rights, concluding that three grounds existed to terminate Mother's parental rights and that termination of her parental rights was in the child's best interests. Mother appealed, arguing that the trial court abused its discretion in concluding that terminating Mother's rights was in the child's best interest. The Supreme Court agreed, holding termination of Mother's rights was in the child's best interest.

In re Z.K.

Court: North Carolina Supreme Court

Docket: 476A19

Opinion Date: September 25, 2020

Judge: Earls

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating Mother's parental rights to her minor child, holding that the issues identified by counsel in Mother's brief were without merit. The trial court terminated Mother's parental rights to her child, concluding that grounds existed to terminate Mother's parental rights pursuant to N.C. Gen. Stat. 7B-1111(a)(1), (2), and (6) and that it was in the child's best interests that Mother's parental rights be terminated. The Supreme Court affirmed, holding that the order of the trial court was supported by clear, cogent, and convincing evidence and was based on proper legal grounds.

Fabiano v. Cotton

Court: Vermont Supreme Court

Citation: 2020 VT 85

Opinion Date: September 25, 2020

Judge: Beth Robinson

Areas of Law: Family Law

Plaintiff challenged the trial court’s order granting defendant’s motion to modify the parties’ parenting schedule. The parties were married in 2012. Plaintiff gave birth to their child in 2015, and defendant adopted the child through a second-parent adoption that was final in October 2016. The parties ended their sexual relationship in January 2017, but continued to live together and act as co-parents. In November 2017, the parties signed a “Marital Settlement Agreement” with the help of an application called “Wevorce.” In negotiating the agreement, they did not consult with lawyers or third parties, except for one half-hour consultation with “a lawyer on Church Street.” At the same time, they signed a court form titled “Agreement on Parental Rights and Responsibilities, Parent Child Contact and Provisions Relating to Children.” Plaintiff filed for divorce in December 2017, and submitted the parties’ stipulation to waive final hearing. The parties were still living together and sharing in the child’s care when they commenced the divorce action. The divorce was finalized in July 2018 at an uncontested hearing before the family division. Both parties represented themselves. At the time and following the divorce, they continued to live in the same house and to share care of the child. In November 2018, plaintiff moved out and became reluctant to allow defendant time with the child. Plaintiff had not discussed this “total move” with defendant beforehand. In January 2019, defendant filed a motion to modify parent-child contact on the ground that “[t]here has been a real, substantial and unanticipated change of circumstances in that the parent and child are no longer all living in the same household and there is no schedule for any parent child contact for Defendant.” Plaintiff opposed the motion to modify. When the request was granted, Plaintiff appealed, arguing the trial court abused its discretion by: (1) holding a hearing on the motion to modify when a prior judge had determined that the case should proceed as a motion for relief from judgment; (2) finding that there was a real and unanticipated change in circumstances; and (3) assessing the best interests of the child. Finding no abuse of discretion or other reversible error, the Vermont Supreme Court affirmed the trial court.

In re C.B., Juvenile

Court: Vermont Supreme Court

Citation: 2020 VT 80

Opinion Date: September 25, 2020

Judge: Paul L. Reiber

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law

Father appealed a family division order terminating his parental rights to his son C.B., born in August 2016. The State filed a petition alleging that C.B. was a child in need of care or supervision (CHINS) in October 2017 based on allegations that father had repeatedly engaged in domestic violence and mother continued to allow father to be around her and C.B. despite repeated abuse and court orders barring contact. A January 2018 order gave father the right to supervised parent-child contact, but he did not follow through and no visits took place. Father had a lengthy criminal history including a conviction for attempted aggravated assault with a deadly weapon. At the time of the final hearing, he had several charges still pending. Father required safe housing, employment, therapy, parenting classes, and time to develop a relationship with C.B. Given father’s lack of progress towards achieving case-plan goals, the trial court found there was no possibility he could safely parent C.B. in a time reasonable for C.B., given C.B.’s need for permanency, thus termination of his rights was granted. Father alleged on appeal that the court committed several errors related to paternal grandmother’s requests for a guardianship of C.B. in the probate division, and for visitation with C.B. in the family division. Father also claimed the court deprived him of standing at the merits stage, failed to assign him counsel, and erred in not directing a suitability assessment of paternal grandmother at the initial temporary-care hearing. Finding no reversible error, the Vermont Supreme Court affirmed.

In re S.L.

Court: Supreme Court of Appeals of West Virginia

Docket: 20-0015

Opinion Date: September 25, 2020

Judge: Armstead

Areas of Law: Family Law

In this abuse and neglect matter, the Supreme Court affirmed the order of the circuit court denying Mother's post-termination visitation motion, holding that filing a post-termination visitation motion does not extend the timeframe to appeal a final disposition order and that the circuit court did not err in denying Mother's post-termination visitation motion. The circuit court entered an order terminating Mother's parental rights and prohibited Mother from having further contact with her child. Mother subsequently filed a post-termination motion. The circuit court denied the motion. Mother appealed, alleging that the circuit court erred by terminating her parental rights and by denying her post-termination visitation motion. The Supreme Court affirmed, holding (1) Mother's appeal of the final disposition order was untimely, and Mother's filing of the post-termination visitation motion did not extend the timeframe to appeal the underlying final disposition order; and (2) the circuit court did not err by denying Mother's post-termination visitation motion.