In a just decided (July 23, 2015) unpublished decision (In re Emily S.) the Court of Appeals of California, Second Appellate District, has reversed a trial court's decision that denied, without a hearing, a biological mother's court petition to regain custody of a daughter that had been placed with her paternal grandparents. This comment briefly reviews this noteworthy decision and is not intended to provide legal advice. Consult an experienced attorney in all family law matters.
In a brief and incomplete overview, the child had been removed from her biological mother and placed with grandparents in 2010 due to concerns regarding the mother's substance abuse, emotional instability, and domestic violence between the child's parents. In 2011 the mother gave birth to a son that she had retained custody of throughout this time. The mother had consistent contact with her daughter. Some three years later, the mother's petition to the court to regain custody alleged that she had married, had an apartment, was employed, had completed a domestic violence program, and abstained from drug abuse. Additionally, her petition alleged changed circumstances at the grandparents' residence and in the care granted to the child. Her two 2014 petitions were denied without a hearing. The trial court stated that there was a failure to show new evidence or changed circumstances or that a change would promote the child's best interests. Additionally, certain funding for the child would be lost (the Appellate Court's opinion disputed this contention) if the case were reopened.
The Appellate Court determined that the trial court had abused its discretion in failing to conduct a hearing as under California law these petitions are to be "liberally construed in favor of their sufficiency." While expressing no opinion as to the outcome of the hearing, the Appellate Court indicated that a hearing "will provide an opportunity for the court to evaluate the full picture and to obtain input from the legal guardian, DCFS [Department of Children and Family Services] and minor's counsel."
My personal observation is that the most fundamental due process requires an opportunity to present evidence before a neutral decision maker. Prior California judicial decisions, cited by the Appellate Court, state that even a petition for a hearing that "might" show evidence of a need for a change of a custody order is sufficient to trigger a requirement for a hearing. The Appellate Court's decision indicates that with perhaps a few lapses, the mother had consistently followed DCFS requirements and affirmatively moved to improve her life and circumstances. The mother was also persistent in asserting her legal rights to her daughter. These are important steps for a parent to undertake in any similar situation.
This comment briefly reviews a single noteworthy judicial decision and is not intended to provide legal advice. Consult an experienced attorney in all family law matters.