In an April 7, 2010 decision, CA-3 affirmed a Mono County Court decision to reject a mother’s petition to compel her 8-year-old son’s return to his native Chile under the rules of the 1980 Hague Convention based on the boy’s clearly stated preference to remain in the United States.

Born in 2000, Cesar Flores resided in Mono County, CA for the first 4 years of his life. His unmarried parents agreed to let Cesar take an extended vacation with his mother in her native Chile in 2004, but the mother decided that neither she nor Cesar would be returning. A Chilean Court granted the mother custody, and for the next 4 years, Cesar lived in Chile with his mother and her family.

In 2008, Cesar was sent by his mother back to Mono County to visit his mother’s sister. Upon learning of this, Cesar’s father filed a petition to establish parentage and was awarded temporary custody. Cesar’s mother immediately filed a petition under the Hague Convention (adopted 1980 to prevent the unilateral retention of children across national borders). Cesar’s father responded that, according to a clause under Article 13 of the Convention, the judicial authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

Cesar did not want to go back to Chile. He told the Court he only had one friend and no room, bed or television of his own. He liked being with his father more than with his mother. Cesar said he felt good in America, not in Chile. The Court determined Cesar was not under undue influence when he told the Court his preference of residence and custodial parent. Moreover, the Court determined Cesar possessed a sufficient degree of maturity to express that preference. The Mono County Superior Court thus rejected the mother’s petition and rendered a Statement of Decision on March 5, 2009.

Cesar’s mother appealed the decision and argued that the appellate court’s review would ultimately be de novo, reviewing all the evidence to determine whether or not Cesar was mature enough to express his preference. Cesar’s father responded that the Appellate Court’s role was only to determine if the lower Court had made an error in determining Cesar’s maturity.

The CA-3 Appellate Court determined that it would be inappropriate to do a de novo review as it only had Cesar’s transcript before it and not a living, breathing child whose nuance and body language might convey maturity where unadorned words would not. In reviewing other cases, the Court determined that an 8-year-old child is not too young to display the sufficient degree of maturity required under the Hague Convention, and upon reviewing the case transcript, further determined it could “not say the inferences the trial court drew were unreasonable, and this precludes us from overturning the court’s determination.” The Appellate Court cited Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1122: “Where two or more different inferences can reasonably be drawn from the evidence, this court is without power to substitute its own inferences for those of the trial court and decide the case accordingly.”

Full transcript of the Court’s decision can be found here.

Trinity County mother, K.C., failed to obtain an extraordinary writ to vacate the orders of the Trinity County Juvenile Court denying reunification services and setting the date for a Welfare and Institutions Code section 366.26 hearing when the CA 3rd Appellate Court denied her petition. The decision was filed March 18, 2010.

K.C. had a history of severe nicotine addiction and abuse, and the child’s father was a convicted sex offender. K.C. also continued smoking throughout her pregnancy despite being counseled not to. In fact, a previous half-sibling, born in 2003, suffered at birth from complications due to withdrawal from caffeine and nicotine had been removed from K.C.’s custody in 2005. The child born in 2009 also tested positive for nicotine. Ultimately, this child was removed from K.C.’s custody in September 2009 as K.C. was deemed a neglect risk and the father an abuse risk.

K.C. argued the court abused its discretion in denying her services, maintaining that she had made reasonable efforts to treat the conditions leading to the removal of the child–reducing the number of cigarettes smoked per day and smoking only “organic tobacco.”Under Welfare and Institutions Code § 361.5, subd. (a), When a child is removed from parental custody, the juvenile court must order reunification services to assist the parents in reuniting with the child. However, under the provisions of § 361.5, subd. (b), reunification services need not be provided under several circumstances, the relevant clauses cited in this case being (10) where a parent has had reunification services terminated for failing to treat the problems leading to removal and (11) where parental rights have been permanently severed for the above reasons.

The appellate court determined that K.C.’s efforts had not been reasonable, that her nicotine addiction posed a clear danger to the child, and her failure to acknowledge the danger posed by the child’s father all made the lower court’s decision justified. The appellate court thus denied K.C.’s petition, ruling that the juvenile court had not abused its discretion.

Karen Victoria Dahlberg Wynn won an appeal, 08/04/09, to correct her original birth certificate to state the actual names of her birth parents rather than the fictitious names her mother used when the original certificate was prepared.

Karen was the result of an unplanned pregnancy in 1949. Karen’s mother, an enrolled member of an Indian tribe, hid the pregnancy from her family and community . She falsified her name and the name of the father on the birth certificate. In 1951, she gave Karen up for adoption. She was adopted by the Dahlberg family and a new certificate of live birth was issued listing Karen as their daughter. The old certificate was sealed as part of the adoption process.

In 1981, Karen obtained the release of her adoption file, which revealed the  true names of her biological parents. She also obtained an order from the Fresno Superior Court unsealing her birth record. In 2001, Karen contacted her biological mother and established an ongoing relationship. Karen wanted to join her mother’s tribe but was told by the tribe’s enrollment office that they needed an amended version of her original birth record that changes the name of her natural mother from the fictitious name to the correct name one. Karen filed a motion to have her certificate changed and have Karen’s biological mother be recognized as such.

The matter was heard by the superior court on December 8, 2008. The superior court denied the petition, stating that the court’s jurisdiction was limited and it did not think it “appropriate for the Court to correct an original birth certificate when that is meaningless for legal purposes, for the Court’s purposes, because her new birth certificate [from the adoption] establishes who  her legal parents are and I’ve never had a situation where anyone [has] asked to fix a  birth certificate that no longer has any force and effect in terms of legal status of parent and child.”

Fifth Court of Appeal reversed this decision. The Court determined that current statute did not allow Karen to change the names on her original birth certificate–only that minor clerical changes could be made. But the crux of the case was whether any kind of legal relationship could exist between biological mother and child after child has been adopted. In this case, the Indian tribe membership was the legal tie, and the Court determined that it had the right to adjudicate on the issue of a biological mother-child relationship.

The Court also found that it had the authority and duty to change Karen’s certificate according to one of the provisions in part 3(Uniform Parentage Act) of division 12 (Parent and Child Relationship) of the Family Code applicable to the father and child relationship is section 7639, which states:

“If the judgment or order of the court is at variance with the child’s birth
certificate, the court shall order that a new birth certificate be issued as
prescribed in Article 2 (commencing with Section 102725) of Chapter 5 of
Part 1 of Division 102 of the Health and Safety Code.”

The matter was remanded to the superior court to adjudicate the facts of Karen’s parentage and, if appropriate, order the issuance of a new birth certificate to correct appellant’s original birth certificate.

In Vernoff v. Astrue 9 Cir No. 08-55049, the 9th Circuit Court, June 17, upheld a decision by the Social Security Administration [SSA] not to award survivor benefits to the artificially conceived son of California resident Gabriela Vernoff. The child was born three years after the death of Vernoff’s husband via artificial insemination. Vernoff then filed claim with the SSA seeking child-survivor benefits for the child-survivor benefits for her son and mother-of-survivor benefits for herself. SSA denied her claim. Vernoff appealed to an administrative law judge who upheld the SSA’s decision. She then appealed to the District Court.

The 9th Circuit Court had recently decided in Gillett-Netting (9 Cir 2004) 371 F.3d 593 that posthumously conceived children are eligible for SSA survivor benefits, but the Court affirmed the SSA’s decision in Vernoff asserting that the child was not dependent on the father when he died. Unlike in Gillett, which was decided in Arizona where a biological tie is sufficient to establish paternity, California law requires a relationship between father and son. The Court discarded Vernoff’s argument that intestacy laws established a parental link noting that Vernoff’s husband did not agree to the posthumous conception, and that the conception took place three years after his death, thus disqualifying the child from intestate inheritance.

Jan Forsberg had an intimate relationship with William Scott living for seven years with him and his three children from his prior relationship with Rachael Childress. Scott‟s relationship with Forsberg deteriorated in 2008. Scott, awarded sole legal and physical custody of his children in a UPA with Childress, moved out of Forsberg‟s home, taking the children with him and refusing Forsberg access.

Forsberg sought to join the dormant UPA action on the ground that she was entitled to custody and visitation as the children‟s presumed or de facto mother. The superior court granted Jan‟s petition for joinder over the objections of Scott and Childress and ordered the parties to mediate the matter of custody and visitation.

Scott then filed a petition for writ of mandate with the CA 3rd Apellate Court, seeking to overturn the superior court‟s rulings contending that Forsberg does not have standing to intrude into the parental role of Scott and Childress and to “diminish [their] rights to make decisions in the best interests of their children.”

The Appellate Court determined that the Superior Court was in error and vacated the decision. Neither of the children’s parents had at any time sought to change Scott’s status as sole custodian. Non-parent Forsberg had no standing to inject herself into the existing custody situation, declaring herself indispensable party to the custody of the children, the appellate court decided.

By Rivka Israel, Esq. Marcus Family Law Center, PLC

(originally published in Lavender Lens, 11-08)

In my prior article I began with the statement “Now that marriage is possibly on the horizon…” The reason for my careful phrasing has now become clear. Between the time of the Supreme Court ruling in May and the “amendment” to the California constitution earlier this month, I and many other attorney’s were recommending that same-sex couples register as DP’s in addition to marrying. This was aimed at protecting the legal rights of couples and their families the validity of whose marriages would be in question if proposition 8 passed.

The Prop 8 issue has been on everyone’s minds. Why it passed and why it is so wrong? Why shouldn’t such a law pass by majority vote in a democracy? What effect, if any, does it have or is it only a ‘feel good’ issue with no real legal or social effect? Though many same-sex couples are not interested in getting married, everyone, regardless of race, religion or sexual orientation should be interested in the potential civil rights ramification of the legitimacy of such an “amendment” to our constitution.

Our system and our laws are designed to afford equal rights to everyone and to protect minorities from the oppression of the majority. This is one of the basic foundations that make our country so great. Here in California, there are two distinct procedures for making changes to our constitution. These procedures reflect the seriousness of the change. A change that is relatively minor and does not effect substantive rights is considered an amendment and can pass by way of obtaining sufficient signatures and then passing by majority vote. A change to the constitution that has a more profound effect, such as one which eliminates the fundamental rights of a minority group, must first be presented to both legislative houses and pass by a 2/3rds vote before being submitted to the voters. In addition, enforcement of equal protection is placed in the hands of the judiciary. The issue of people’s rights is not left to the majority. If the rights of an entire minority group can be eliminated by a simple majority vote, just think what other 1discriminatory laws can be enacted by a majority vote.

In May the Supreme Court concluded that 1) gay and lesbian citizens are a protected class of minority entitled to heightened protection and 2) marriage is a fundamental right under the due process and equal protection clauses of our state Constitution. The Supreme Court has now agreed to hear the matter of the legality of the amendment and its effects in the context of several cases filed after the election.

The issues which the Court will address are: 1) Is proposition 8 a revision rather than an amendment of the state Constitution? 2) Does proposition 8 violate the separation of powers doctrine of the state Constitution? & 3) If the proposition is constitutional, what effect will it have on the same-sex marriages performed before the adoption of the amendment? As a family law practitioner, I believe that the third issue is the most important on an individual basis, as it will determine many of the rights of these couples, relating to issues such as custody and property. Argument on the case is anticipated to take place in March of 2009.

Rivka Israel is an attorney with the Marcus Family Law Center.  She can be reached at marcussd@barefootlawyer.com.

On Dec. 22, 2008, the First Appellate District rejected the appeal from an incarcerated man seeking to retain parental rights and prevent adoption of his biological son.

In re: T.M. et. al. v. B.R., the child was born in September of 2006 in San Bernardino County. Father and mother knew each other for several years prior but were never married and never lived together. Father learned of mother’s pregnancy in February of 2006, and they discussed raising the child together. Father had a history of of drug use and was incarcerated for a four month term for breaking parole one week after discovering mother’s pregnancy.

At the time of father’s release, mother actively avoided contact with the father and in July of 2006, she put the unborn child up for adoption. Father learned of this and scheduled an appointment with an attorney, but he was arrested for methamphetamine use and sale as well as possession of a handgun.

Child was born on Sept. 10, 2006. After birth, mother relinquished child to a same-sex couple which had agreed to adopt in July.

That day, father filed a petition with the San Bernardino Superior Court to determine that he was the father and to halt any adoption proceedings until paternity was established. The adopting couple was unaware of these proceedings and filed an adoption request.

Father received a 12 year sentence for his crimes. From prison, he filed an objection to the adoption and stated that if his parental rights were not terminated, father’s parents should care for the child until father was released from prison.

On January 15, 2008, the San Francisco Superior Court held a hearing regarding the adopting couple’s request to terminate father’s parental rights. An expert testified that the child had bonded to the couple.

At the conclusion of the hearing, the trial court announced its decision that father did not qualify as a statutory presumed father, and was not entitled to the rights afforded to unmarried fathers by the Kelsey S. and Michael H. cases. The court found by clear and convincing evidence that child’s best interests would be served by terminating father’s parental rights, and ordered that his adoption by the couple should proceed despite father’s lack of consent. Father appealed.

Under the applicable statutory scheme in California (Fam. Code, §§ 7610-7612, 8604), the consent of a child’s biological father is not needed for an adoption unless he has qualified as a presumed father.

But under Kelsey S.,

an unwed father who has no statutory right to block a third party adoption by withholding consent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of the Fourteenth Amendment and thereby to preserve his opportunity to develop a parental relationship with his child

In Michael H. the Supreme Court clarified that the father does not have this right unless he has promptly come forward and declared willingness to accept parental responsibilities.

Father maintained that mother’s avoidance prevented him from meeting the Michael H. criteria. Court rejected this assertion noting that father gave no support before mother began avoiding him and that it was his own actions which led to incarceration and inability to support the mother.

The court determined that;

Under these circumstances, we hold that the father did not make a showing of commitment to his parental responsibilities sufficient to entitle him to a hearing on his fitness before his parental rights could be terminated. Accordingly, we affirm the trial court’s order granting the prospective adoptive parents’ petition toterminate the biological father’s parental rights.

On April 4, 2008, the Second Appellate District reversed a Findings and Order granting a Petition by a child’s biological father seeking that he was the child’s presumed father stating that:

. . . a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. (Full text of 04/08/2008 Opinion.)

In re: Vincent M. the child was born in February, 2006 after Petitioner had moved to New York without mother to attempt to gain custody of a child from a previous relationship. Mother had originally told another man that he was the father and had not informed the Petitioner in this case that she was pregnant. At the child’s birth, Mother told the other man that the child had died, surrendered the child to the hospital, and refused to identify the father. The child was placed with prospective adoptive parents and on 03/08/06, the junior court found that the whereabouts of Mother and identity of the Father of the child were unknown, declared the child a court dependent, and moved to the permanency stage of the dependency action.

In September, 2006 a new paternity test revealed that the other man was not the father and Mother contacted the Petitioner to inform him that he was. In October, 2006 Petitioner took a paternity test and was determined to be the biological father of the child. Petitioner then filed his Petition seeking a Declaration that he was the child’s presumed father, and thus entitled to reunification services with the child, despite the time period for such services having expired.

The Second Appellate District found that father did not meet the definition of presumed father status under Civil Code section 7004, subdivision (a) and stated that presumed father status is not related to biology. In discussion of the decision, the court stated, “For a biological father who does not assert paternity until after the expiration of any reunification period, the ‘only remedy’ is to file a petition to modify under section 388″ which requires a showing of new evidence or changed circumstances showing that reunification services or granting custody to the biological parent would be the best interests of the child. As the lower court did not consider the best interests standard, the Findings and Order was reversed and father was directed that he may file another Petition for which the court would have to consider the current status and best interests of the child in making its ruling.

Parents and prospective adoptive parents can find more information about a biological parent’s right to reunification services under California law at adoption.com.

On April 8, 2008 the Fourth District Appellate court provided direction on which standard to apply in cases seeking a change in parenting and visitation post Judgment.

In re Marriage of Lucio, the Judgment of Dissolution from 2004 awarded both parents joint legal custody and granted sole physical custody to Mother with monitored visitation to Father. In April, 2006, Father filed an Order to Show Cause seeking joint physical custody of the children. The trial court denied Father’s Order to Show Cause, and prior to the order on the first Order to Show Cause being entered, Father filed a second Order to Show Cause requesting a modification to the parenting plan with no monitored visits. Father filed supporting Declarations which spoke to the concerns regarding the Penal Code violations (which had led to initiating monitored visitation), but the trial court ruled that Father had failed to allege a change of circumstance since the denial of the first Order to Show Cause and therefore dismissed the second Order to Show Cause.

The Appellate court reversed the lower court’s decision to apply the changed-circumstances standard and directed the court to reconsider the Father’s Order to Show Cause under the best-interests standard, summarizing its reasoning as follows:

Under the changed circumstance rule, after the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, custody modification is appropriate only if the parent seeking modification demonstrates “‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard. (Full text of 04/08/2008 Opinion.)

The Appellate court stated that the Father’s requested changes to the visitation schedule did not create a de facto change in custody and would not disrupt the children’s established patterns of care and emotional bonds with Mother or destabilize the sole physical custody arrangement.

The court relied on a number of previous cases, including Enrique M. v. Angelina V. (2004) , In re Marriage of Birnbaum (1989), In re Marriage of Burgess (1996), and Niko v. Foreman (2006) continuing the pattern of distinguishing a request for change of custody from a request to modify the visitation schedule or co-parenting arrangements.

On February 28, 2008 the Second Appellate District granted a petition for extraordinary writ which reversed the lower court’s decision refusing to order parents to enroll their children to attend public or private school. The lower court found that parents have a constitutional right to homeschool their children, while the Second Appellate District reversal stated:

It is clear to us that enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.) applies to the child. In re Rachel L. (Full text of 02/28/08 disposition)

The decision received mainstream media attention. The Los Angeles Times reported apprehension among current homeschooling families fearing prosecution under the new ruling and the San Francisco Chronicle reported on Governor Schwarzenegger’s pledge to intervene if the rights of parents to homeschool their children were challenged.

On March 25, 2008 the Second Appellate District granted the petition for rehearing filed by the parents In re Rachel L. and allowed for submission of an amicus curie brief by the school through which the parents had operated their homeschooling program. The brief shall address whether parents have the right to homeschool their children and whether California law permits homeschooling by non-credentialed parents. The court further announced its intention to hear the matter on its June, 2008 calendar and to solicit amicus briefs on the issues from the California State Superintendent of Public Instruction, California State Board of Education, California Federation of Teachers, California Teachers Association, and United Teachers Los Angeles. The court will also consider timely applications for amicus briefs from other interested parties.

According to the Los Angeles Times, as many as 166,000 homeschooled children will be affected by the court’s eventual decision on this matter.