Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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In re Anna T.

Court: California Courts of Appeal

Docket: B299987(Second Appellate District)

Opinion Date: October 13, 2020

Judge: Dennis M. Perluss

Areas of Law: Family Law

In this case, the dependency petition was filed, and the juvenile court assumed jurisdiction, after the family court had entered a final judgment awarding Todd T. sole legal authority to make healthcare decisions for his daughter, Anna T. After the juvenile court terminated its jurisdiction a year later, it expressly declined to issue a juvenile court custody order pursuant to Welfare and Institutions Code section 362.4, reverting back to the original family law decision. The juvenile court nonetheless ordered Anna to continue in treatment with a therapist selected by Anna's mother to be paid by Todd until the therapist determined a change would not interfere with Anna's treatment. The juvenile court also prohibited Todd from returning Anna to two healthcare providers who had previously seen her. The Court of Appeal held that the challenged orders, not having been made as part of a juvenile court custody order pursuant to section 362.4, had no continuing effect after the juvenile court terminated its jurisdiction. In this case, although the juvenile court plainly recognized its ability to issue a juvenile court custody order pursuant to section 362.4, the juvenile court believed it unnecessary to do so. The court vacated the orders, and stated that any ongoing issues regarding Todd's authority to make healthcare decisions regarding Anna are properly addressed to the family court.

In re N.S.

Court: California Courts of Appeal

Docket: D077177(Fourth Appellate District)

Opinion Date: October 9, 2020

Judge: Cynthia Aaron

Areas of Law: Family Law, Government & Administrative Law, Native American Law

C.V. (Mother) appealed an order issued under Welfare and Institutions Code section 366.261 selecting adoption as the permanent plan for her son N.S. and terminating her parental rights. N.S.’s father was a member of the San Pasqual Band of Mission Indians (the Tribe). The Tribe was involved in this case since the juvenile court found that N.S. was an Indian child and that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) applied. On appeal, Mother contended: (1) the Tribe’s “decree” selecting guardianship as the best permanent plan option for N.S. preempted the statutory preference for adoption under section 366.26; (2) N.S.’s counsel breached his duties under section 317 and provided ineffective assistance of counsel by failing to discover what Tribal benefits or membership rights were available to N.S. before the termination of parental rights; (3) the court erred in finding that the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) did not apply to preclude termination of parental rights; (4) there was insufficient evidence to support the court’s finding beyond a reasonable doubt that continued custody in Mother’s care would be a substantial risk to N.S.; and (5) the court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude termination of parental rights. Finding no reversible error, the Court of Appeal affirmed.

In re Matter of the Termination of Parent-Child Relationship of K.R.

Court: Supreme Court of Indiana

Docket: 20S-JT-63

Opinion Date: October 15, 2020

Judge: Steven H. David

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the trial court terminating Parents' parental rights to their four children, holding that the trial court did not err in admitting drug test reports on the grounds that the reports properly fell under the records of a regularly conducted activity exception to the hearsay rule pursuant to Ind. R. Evid. 803(6). During the termination hearing, the trial court admitted Parents' drug test results into evidence. Parents appealed, arguing that the drug tests did not meet the regularly conducted activity exception under Ind. R. Evid. 803(6). The Supreme Court affirmed, holding that the trial court did not err in admitting the records over Parents' objections.

In re Children of Loretta M.

Court: Maine Supreme Judicial Court

Citation: 2020 ME 121

Opinion Date: October 15, 2020

Judge: Per Curiam

Areas of Law: Family Law

The Supreme Judicial Court affirmed the judgment entered by the district court terminating Mother's parental rights to three of her children, holding that the court did not clearly err in finding at least one ground of parental unfitness by clear and convincing and did not abuse its discretion in concluding that termination was in the children's best interests. The district court terminated Mother's parental rights to three of her children pursuant to Me. Rev. Stat. 22, 4055(1)(A)(1)(a), (B)(2)(a), (b)(i)-(iv). The Supreme Judicial Court affirmed, holding that the express findings the court made were sufficient to support its determination to terminate Mother's parental rights.

Dycus v. Dycus

Court: Nebraska Supreme Court

Citation: 307 Neb. 426

Opinion Date: October 9, 2020

Judge: Freudenberg

Areas of Law: Constitutional Law, Family Law

The Supreme Court affirmed the dissolution decree in this case, holding that the no-fault divorce statutory scheme governing dissolution found at Neb. Rev. Stat. 42-347 to 42-381 is not unconstitutional. On appeal from the dissolution decree, Defendant argued that, by virtue of establishing no-fault divorce, the statutory scheme deprives defendants in dissolution actions of procedural due process and constitutes special legislation in favor of plaintiffs. The Supreme Court affirmed, holding (1) section 42-347(3) does not violate the procedural due process provisions of the United States and Nebraska Constitutions; and (2) section 42-347(3) does not constitute special legislation granting divorces.

In re Guardianship & Conservatorship of J.F.

Court: Nebraska Supreme Court

Citation: 307 Neb. 452

Opinion Date: October 9, 2020

Judge: Funke

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the county court granting Gerald F.'s petition to be appointed guardian and conservator of a minor child and ordering Gerald to pay the guardian ad litem's (GAL) reasonable fees and costs, holding that the court acted within its statutory authority. After Gerald filed his petition to be appointed guardian and conservator he moved for the appointment of a GAL to represent the interests of the minor child. The motion was sustained by the county court. After a trial, the court granted Gerald's petition to be appointed the child's guardian and conservator. The county court subsequently determined that Gerald must pay the GAL's fees and costs. Gerald appealed, arguing that the order to pay fees and costs was not statutorily authorized. The Supreme Court affirmed, holding that the court's order was authorized under Neb. Rev. Stat. 30-2643.

In re H.L.

Court: Supreme Court of Appeals of West Virginia

Docket: 20-0052

Opinion Date: October 9, 2020

Judge: Hutchison

Areas of Law: Family Law

The Supreme Court vacated the disposition order of the circuit court that terminated Mother's parental rights to her two children, holding that the circuit court erred by failing to address Mother's alleged status as a "battered parent." The circuit court adjudicated Mother as an abusive and neglectful parent and terminated Mother's parental rights, finding no reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in the near future. On appeal, Mother argued that the circuit court erred by finding that she was abusive and neglectful based upon Father's domestic violence. The Supreme Court vacated the disposition order, holding that, given the circuit court's failure to make findings of fact and conclusions of law regarding Mother's alleged status as a "battered parent," the case must be remanded for a new adjudicatory hearing.

In re P.F.

Court: Supreme Court of Appeals of West Virginia

Docket: 20-0113

Opinion Date: October 14, 2020

Judge: Armstead

Areas of Law: Family Law

The Supreme Court reversed the order of the circuit court denying Grandmother's motion to intervene in the abuse and neglect proceeding regarding her infant grandchild, holding that, under the specific facts of this case, a remand was necessary for an evidentiary hearing to determine whether the preference for grandparent placement was in the child's best interest. When the Department of Health and Human Services filed a petition for immediate custody of the child Grandmother requested that she be allowed to intervene in this matter and that the child be placed in her custody. The circuit court denied the motion to intervene and ordered that a foster care placement be maintained regarding placement and custody until further order of the court. The Supreme Court reversed and remanded the case, holding (1) the circuit court did not err by denying Grandmother a meaningful opportunity to be heard under W. Va. Code 49-1-601(h); (2) the grandparent preference statute provides that adoption by a grandparent is presumptively in the child's best interest; and (3) under the facts of this case, a remand was required for the circuit court to hold an evidentiary hearing in which Grandmother is allowed to fully participate and address whether placement with Grandmother was in the child's best interest.