Latest 15 Cases This Week: In re J.M. (Cal. Ct. App.), Lak v. Lak (Cal. Ct. App.), State v. A.I. (Me.)

Hard Cases

JOSEPH MARGULIES

Cornell law professor Joseph Margulies uses the killing of Rayshard Brooks in Atlanta by police to explain some lessons for reform we might learn. Margulies calls upon us to use this case to reexamine the circumstances that should result in a custodial arrest and to shrink the function of police so as to use them only in the very few situations that truly require them.

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In re J.M.

Court: California Courts of Appeal

Docket: B298473(Second Appellate District)

Opinion Date: June 17, 2020

Judge: Frances Rothschild

Areas of Law: Family Law

Mother challenged three juvenile court orders regarding her sons. The Court of Appeal held that the juvenile court committed reversible error when it denied mother's modification petition, because she established a substantial change in circumstances by resolving the domestic violence underlying the initial dependency petition. The court also held that the trial court abused its discretion in concluding placement with mother would not be in J.M.'s best interests. Therefore, the juvenile court's May 15, 2019 and September 30, 2019 orders denying mother's Welfare and Institutions Code section 388 petitions and the juvenile court's September 30, 2019 order pursuant to section 366.26 are reversed.

Lak v. Lak

Court: California Courts of Appeal

Docket: G056784(Fourth Appellate District)

Opinion Date: June 12, 2020

Judge: O'Leary

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

The Orange County Department of Child Support Services (Department) has withdrawn money from Daniel Lak’s (Father) Social Security Disability Insurance benefits (SSDI) to pay for child/spousal support arrears since 2015. Father disputed the Department's authority to withdraw money, and at a hearing, sought reimbursement for overpayments and maintained the Department violated Family Code section 5246 (d)(3) by collecting more than five percent from his SSDI. The court denied Father’s requests and determined the Department could continue withdrawing money from SSDI for support arrears. On appeal, Father maintaned the court misinterpreted the law and failed to properly consider his motion for sanctions. Finding his contentions lack merit, the Court of Appeal affirmed the court’s order the Department did not overdraw money for arrears, Father failed to demonstrate he qualified for section 5246(d)(3)’s five percent rule, and sanctions were not warranted.

State v. A.I.

Court: Maine Supreme Judicial Court

Citation: 2020 ME 89

Opinion Date: June 18, 2020

Judge: Joseph Jabar

Areas of Law: Family Law, Juvenile Law

The Supreme Judicial Court affirmed the order of the juvenile court placing A.I. in the custody of the Department of Health and Human Services, holding that the juvenile court correctly applied the preponderance of the evidence standard when it determined whether to place A.I. in the custody of the Department. On appeal, Mother argued that the matter should be remanded to the juvenile court so that findings can be addressed under a clear and convincing standard rather than a preponderance of the evidence standard. The Supreme Judicial Court disagreed, holding that A.I.'s dispositional hearing fell on the less-intrusive end of the continuum and that the juvenile court did not err when it applied the preponderance of the evidence standard in the proceedings below.

Torres Friedenberg v. Friedenberg

Court: Supreme Court of Ohio

Citation: 2020-Ohio-3345

Opinion Date: June 18, 2020

Judge: Judith L. French

Areas of Law: Family Law

The Supreme Court affirmed the decision of the court of appeals affirming the order of the court of common pleas, domestic relations division, ordering the release, subject to a protective order, of the mental-health records of Mother, holding that the physician-patient privilege did not shield the records from discovery. During the parties' divorce proceedings, both parties sought custody of their four children. During discovery, Father issued subpoenas for Mother's mental health records to various doctors and mental-health provisions. The trial court ordered that the subpoenaed records be submitted under seal to the court for an in camera determination of their relevance. After in camera review, the trial judge concluded that Mother's requests for child custody and spousal support put her physical and mental conditions at issue and waived the physician-patient privilege. The court then ordered the release of the mental-health records, subject to a protective order. The court of appeals affirmed. The Supreme Court affirmed, holding that while communications between a physician and patient are generally privileged, Mother's filing of this divorce action, with claims for child custody and spousal support, triggered the Ohio Rev. Code 2317.02(B)(1)(a)(iii) exception to the privilege.

M. A. B. v. Buell

Court: Oregon Supreme Court

Docket: S066752

Opinion Date: June 18, 2020

Judge: Nelson

Areas of Law: Civil Procedure, Family Law

Petitioner M.A.B. applied for a Family Abuse Prevention Act (FAPA) protective order against respondent on October 9, 2017. Respondent and petitioner were married in 2014. Together, they had a son, J, who was born in 2015. During the marriage, respondent suffered from depression, for which he took medication. He sometimes also drank to excess. Petitioner testified that respondent raped her twice: once in March 2017 and once in May 2017. The incident in May included respondent dragging petitioner away from J while petitioner was breast feeding. In June 2017, petitioner expressed her unhappiness with the marriage. Respondent replied that, if petitioner left or divorced him, he would kill her and take J. In July 2017, petitioner took J, moved in with her parents, and filed for dissolution. After the separation, respondent made frequent attempts to contact petitioner by phone, email, and text message. At prearranged meetings, respondent regularly exhibited anger toward petitioner. After a hearing, the trial court continued the protective order in its entirety. On appeal, respondent conceded that the trial court’s findings were sufficient to establish that he had abused petitioner within 180 days of petitioner seeking the protective order. Respondent argued, however, that the evidence was insufficient to establish the two other elements: that petitioner was in imminent danger of further abuse from respondent and that respondent presented a credible threat to petitioner’s physical safety. The Court of Appeals agreed with respondent that the evidence was insufficient to show that petitioner was in imminent danger of further abuse from respondent. The court, as a result, reversed the trial court’s order without considering whether respondent represented a credible threat to petitioner’s physical safety. Because the appellate court did not consider whether respondent represented a credible threat to petitioner’s physical safety, the Oregon Supreme Court reversed and remanded for the appeals court to determine that issue in the first instance.

In Re: J.W.B. & R.D.B.

Court: Supreme Court of Pennsylvania

Docket: 93 MAP 2019

Opinion Date: June 16, 2020

Judge: Donohue

Areas of Law: Civil Procedure, Family Law

In a discretionary appeal, the Pennsylvania Supreme Court considered whether the superior court erred in its application of Pennsylvania law to find that L.B., a Colorado resident, was foreclosed from challenging the validity of his consent to permit the adoption of his minor children under the Pennsylvania Adoption Act, but not the requirements of the corresponding Colorado statute. After review, the Court concluded the superior court did not err, and affirmed the termination of L.B.'s parental rights to his children.

In the Interest of: D.R.

Court: Supreme Court of Pennsylvania

Docket: 45 WAP 2019

Opinion Date: June 16, 2020

Judge: Mundy

Areas of Law: Family Law, Government & Administrative Law

D.R. (Father) and J.R. (Mother) (collectively, Parents) resided in Greene County, Pennsylvania with their five children, ranging in age from six to sixteen years old. Father was an attorney who, as part of his private practice, represented parents under investigation by Greene County Children and Youth Services (CYS). On October 29, 2018, Greene County CYS received a report that on October 12, 2018, Father was observed to be impaired or under the influence while in the presence of one of his children. Because Father was a practicing attorney in Greene County, and to avoid a conflict of interest, the matter was referred to Fayette County CYS (the Agency). The Agency received three reports regarding Father, one of which was an allegation of abuse towards Mother (criminal charges were dropped because she refused to testify). The Agency thereafter moved to compel Parents' cooperation with a General Protective Services Assessment. Following a hearing, orders directing Parents to permit the Agency into their home to assess the living conditions of the children, and directing Parents to cooperate with the Agency were issued. The court also ordered Father to submit observed urine samples for purposes of drug and alcohol assessments. The orders further noted that Parents’ failure to comply would subject them to sanctions. Parents appealed, and a superior court reversed, finding no link between the alleged abuse and conditions in the home. Further, though there were reports of Father's intoxication, there was no specificity as to the type of impairment or whether such impairment caused the children to be abused or neglected. The Agency argued on appeal that the Superior Court erred in holding that it was without authorization to require urine samples as part of its duty to investigate reports of suspected child abuse. Finding no reversible error in the superior court judgment, the Pennsylvania Supreme Court affirmed.

In re Adele B.

Court: Rhode Island Supreme Court

Docket: 16-87

Opinion Date: June 17, 2020

Judge: Maureen McKenna Goldberg

Areas of Law: Family Law

The Supreme Court affirmed the decree of the family court terminating Mother's parental rights her to her daughter, holding that the family court justice's findings were not clearly wrong, and the justice did not overlook or misconceive material evidence. Specifically, the Supreme Court held that the trial justice did not err by (1) failing to recuse herself from the trial after she ordered the filing of a petition to terminate Mother's parental rights; (2) finding, by clear and convincing evidence, that Mother was an unfit parent; and (3) concluding that it was in the child's best interests to terminate Mother's parental rights to her.

Barrett v. Minor

Court: Supreme Court of Virginia

Docket: 181670

Opinion Date: June 18, 2020

Judge: Per Curiam

Areas of Law: Family Law

The Supreme Court granted Defendant's motion to dismiss Plaintiff's appeal from the judgment of the court of appeals, denied Plaintiff's motion for sanctions, and sanctioned Plaintiff pursuant to Va. Code 8.01-271.1, holding that Plaintiff's jurisdictional statement did not satisfy Rule 5:17(c)(2) and that Plaintiff's conduct merited sanctions. This appeal was the latest in a series of "habitually frivolous" litigation Plaintiff initiated against Plaintiff as a part of a continual effort to contest child custody, visitation, and support orders. The appeal challenged the court of appeals' judgment affirming the trial court's (1) denial of a series of motions filed by Plaintiff, (2) determination of the amount of attorney's fees to award Defendant in connection with litigation related to the custody and visitation of the parties' children, and (3) award of additional fees to Defendant. The Supreme Court held (1) Plaintiff's jurisdictional statement did not satisfy Rule 5:17(c)(2); (2) Plaintiff's conduct warranted the sanction of Plaintiff paying Defendant's reasonable attorney's fees in costs; and (3) Plaintiff shall be prohibited from filing in the Supreme Court any pleading or paper against Defendant without obtaining the services of a practicing Virginia attorney or obtaining leave of the Court to file any pro se pleading.

In re A.T.

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0598

Opinion Date: June 17, 2020

Judge: Walker

Areas of Law: Family Law

The Supreme Court reversed the circuit court's order terminating Father's parental rights and remanded the matter for a new dispositional hearing, holding that the circuit court erred in granting multiple extensions to the pre-adjudicatory improvement period, and the court's factual determinations were clearly erroneous and contrary to the record. After his three minor children were removed from his home, Father was granted a pre-adjudicatory improvement period starting on September 14, 2016. Over the next two years, the circuit court granted extensions to the pre-adjudicatory improvement period. Father was not adjudicated until November 23, 2018. On June 3, 2019, the circuit court terminated Father's parental rights. The Supreme Court reversed, holding (1) the court erroneously granted several extensions to the pre-adjudicatory improvement period, in violation of time limits set forth by W. Va. Code 49-4-610(1) and 49-4-610(9); and (2) the circuit court's findings relating to the substantive allegations upon which Father's parental rights were terminated were clearly erroneous.

In re J.P.

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1089

Opinion Date: June 15, 2020

Judge: Jenkins

Areas of Law: Family Law

The Supreme Court reversed the order of the circuit court that permanently placed a minor child with Foster Parents instead of a grandparent, holding that the circuit court erred by not adhering to the grandparent preference in this case. On appeal, Paternal Grandfather and Maternal Grandmother argued that the circuit court erroneously disregarded the statutory grandparent preference under W. Va. Code 49-4-114(a)(3) by placing the child with the Foster Parents because Parental Grandfather was a fit caretaker, bureaucratic delays caused the child to remain with the Foster Parents for an extended period of time while waiting for Paternal Grandfather's home study to be completed, and placement with Paternal Grandfather was in the child's best interest. The Supreme Court agreed and reversed the circuit court's order, holding (1) Paternal Grandfather was fit to care for the child and that placing the child with Paternal Grandfather was in the child's best interest; and (2) therefore, the circuit court erred in placing the child with the Foster Parents.

Michael N. v. Brandy M.

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0780

Opinion Date: June 17, 2020

Judge: Jenkins

Areas of Law: Family Law

The Supreme Court reversed the order of the circuit court affirming a family court order dismissing a petition seeking genetic testing to establish paternity and allocate custodial responsibility filed by Petitioner, holding that the circuit court erred by affirming the family court's ruling that Petitioner lacked standing to initiate a paternity action. Following a hearing, the family court issued an order directing paternity testing. Prior to genetic testing, Respondents were granted a writ of prohibition prohibiting enforcement of the family court's order, finding that Petitioner lacked standing to initiate the paternity action. The Supreme Court reversed, holding (1) a petition by a putative biological father seeking to establish his paternity over a child who was born while the mother was married to another man satisfies the "special circumstances" exception in State ex rel. Roy Allen S. v. Stone, 474 S.E.2d 554 (W. Va. 1996), if certain conditions are met; and (2) under the narrow and specific facts of this case Petitioner had standing to pursue his paternity action.

State ex rel. S.W. v. Honorable Wilson

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1078

Opinion Date: June 12, 2020

Judge: Walker

Areas of Law: Family Law

In this abuse and neglect proceeding initiated against Mother for three minor children the Supreme Court granted a writ of prohibition sought by the minor children's guardian ad litem (GAL) seeking an order prohibiting the circuit court from granting a post-dispositional improvement period to Mother, holding that the circuit court erred in granting the improvement period in this case. The GAL argued that the improvement period was improperly granted because the children had been in foster care for more than fifteen of the most recent twenty-two months. The Supreme Court granted a writ of prohibition, holding that the circuit court committed clear error of law in granting an improvement period that exceeded the time limits on foster care imposed by W. Va. Code 49-4-610(9) 49-4-610(9) without sufficient findings that the grant of this improvement period was in the best interest of the children.

Miller v. Carroll

Court: Wisconsin Supreme Court

Docket: 2017AP002132

Opinion Date: June 16, 2020

Judge: Dallet

Areas of Law: Family Law, Legal Ethics

The Supreme Court affirmed the decision of the court of appeals reversing the circuit court's denial of Father's motion for reconsideration of the circuit court's ruling in favor of Mother in a custody dispute, holding that the "extreme" facts of this case rebutted the presumption of judicial impartiality and established a due process violation. The circuit court judge accepted Mother's Facebook "friend request" after a contested hearing but before rendering a decision. During the twenty-five days between the judge's acceptance of Mother's friend request and his issuance of a written decision entirely in her favor, Mother engaged with and reacted to at least twenty of the judge's Facebook posts. Mother further "shared" and "liked" several third-party posts related to an issue that was contested at the hearing. After discovering the Facebook friendship and communications, which the judge never disclosed, Father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. The judge denied the motion. The court of appeals reversed and remanded the case with directions that the court proceed before a different circuit court judge. The Supreme Court affirmed, holding that the circumstances and facts of this case rose to the level of a serious risk of actual bias, which rebutted the presumption of the judge's impartiality.

Begley v. Begley

Court: Wyoming Supreme Court

Citation: 2020 WY 77

Opinion Date: June 18, 2020

Judge: Kautz

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the district court granting Husband's motion seeking an order compelling Wife to sign a joint return for their 2013 federal income tax and pay half of the tax, holding that the district court did not abuse its discretion. In 2014, Wife and Husband divorced, In 2019, Husband filed his motion for an order requiring Wife to sign the joint return and half the tax. The district court ordered Wife to sign the 2013 joint tax return and ruled that the parties were each responsible for half of the tax and that Husband was responsible for the penalties and interest. The Supreme Court affirmed, holding (1) it was appropriate for the district court to order Wife to sign the joint return; and (2) the district court did not abuse its discretion by ordering Wife to pay half of the tax.