IN RE: the Marriage of SOLOMAN ROBERT and CAROL ADRIANNE STANTON, D056713

Affirming the decision of San Diego Superior Court Judge Patricia Garcia, the California Fourth Appellate District Court of Appeal held, November 24, 2010, that the military basic allowance for housing (BAH) and basic allowance for subsistence (BAS) were includable in a soldier’s gross income for the purposes of calculating child and spousal support obligations.

San Diego residents Soloman Stanton, active-duty Naval serviceman and his wife, Carol, were granted dissolution, effective March 2008. Spousal and Child support amounts were stipulated to in their Marital Settlement Agreement (MSA), but at a hearing September 1, 2009, Judge Garcia granted Soloman’s order to show cause (OSC) to set aside the MSA for equitable reasons, save for the termination of marital status. The Court issued temporary support orders, factoring in BAH and BAS.

On October 29, 2010, Soloman filed an OSC to reduce child support followed by a petition to modify spousal support on November 4. His main argument was that including BAH and BAS in his gross income violated the fedeal preemption doctrine as military allowances are exempt from federal taxes and not subject to garnishment for support arrears under federal law.

The Court denied Saloman’s OSC on December 3, stating,”[I]f it looks like income, it is income no matter how it’s paid to you. And this court has always considered BAH and BAS to be income.” Court also denied Salomon’s motion to modify child support.

On appeal, CA-4 affirmed Judge Garcia’s decision, holding that the federal preemption doctrine is inapplicable to California Support Law under the Rose doctrine:

“We have consistently recognized that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ … ‘On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that state law be pre-empted.’ … Before a state law governing domestic relations will be overridden, it ‘must do “major damage” to “clear and substantial” federal interests.’ ” (Rose v. Rose (1987) 481 U.S. 619, 625)

Saloman’s appeal was denied because he failed to cite any direct enactment showing Congress intended to disallow the inclusion of BAH and BAS in a party’s gross income for support calculation. The appellate Court further noted that CFC §4053, which lists the principles to be followed by the Court in setting a child support award, says guideline takes into account “actual” income, not “taxable” income.

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

Karla Cecelia Escobar v. Cesar Flores, C061316

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.

K.C. v The Superior Court of Trinity Country, C063449

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.

Transcript of the court’s decision can be found here.

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IN RE VINCENT M., No. H030258.

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.