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Heidi S. v. David H. Summary

 

Heidi s. v. David H. Summary

Opinion Published July 28, 2016

 

Factual Background

Police found Mother in a public park under the influence of controlled substances and alcohol.  She held her 17-month-old son in her arms at the time.  Child welfare services initiated a dependency proceeding.  The court awarded sole legal and physical custody of the child to Father.  An Exit Order resulted.  The dependency court terminated jurisdiction over the child and the Exit Order granted Mother limited visitation.

 

Three months later, Mother filed an RFO in family court to modify the Exit Order.  Mother sought joint legal custody, sole physical custody, and unmonitored visitation.  Mother asserted as changed circumstances her compliance with court ordered drug testing and alcohol monitoring.  She also received high grades from a clinical psychologist.  Father presented compelling evidence Mother fabricated her negative test results. 

 

Trial Court’s Order

The trial court granted mother increased monitored visitation and, for the first time, allowed her unmonitored visitation as well.  However, due to continued concerns, sole legal and physical custody of the child remained with Father.  The court also ordered Mother to submit to additional drug testing as a condition for continued visitation.  If she missed a test, of tested positive, then monitored visitation would resume.  Mother appealed

Decision on Appeal

 

A change in circumstances must exist to modify an Exit Order’s visitation provisions

 

The parties disagreed over whether the trial court even found a change of circumstances to modify the Exit Order.There was a change of circumstances in Mother’s small improvement.Unlike visitation in family law court, the trial court had to find a change in circumstances to modify visitation as it applied to an Exit Order

 

Mother’s pre-Exit Order conduct was an important consideration when determining if a change of circumstances existed

 

Mother argued on appeal the trial court relied too heavily on her conduct pre Exit Order.  Rather she argued, the court should have focused more extensively on her post order conduct. The Court of Appeal did not agree. The Exit Order was only modifiable for changed circumstances.  The juvenile court expressly detailed its concern with Mother’s drug use, mental state, and their effect on the child’s well-being.  The Court of Appeal dispensed with Mother’s argument by its statement the family court had a statutory obligation to consider the circumstances at the time of the Exit Order to determine whether those circumstances had substantially changed.

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The Family Code required the family court to made a judicial determination Mother abused drugs or alcohol before it imposed new drug testing

 

The Court of Appeal found that the family court had an obligation to enforce the Exit Order.  However, the family court proceeding remained a separate proceeding from the juvenile proceeding.  “Once the juvenile court’s jurisdiction has ended, although the family court can enforce the Exit Order, the family court must rely on its own statutory authority to issue new orders, including orders modifying exit orders issued by the juvenile court.”  The family court’s order which submitted Mother to additional drug testing first required a judicial determination on mother’s drug or alcohol abuse.  In the end, however, any error was harmless since the trial court did make such a finding. 

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Dennis Temko, Esq.

Law Office of Stephen Temko
750 "B" Street Suite 2100
San Diego CA, 92101

 

 

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