Latest 3 Cases: In re C.P. (Constitutional Law), People v. Cowan (Criminal Law), Curcio v. Pels (Family Law)

Whence Cometh Evil? Making Sense of Human Suffering and COVID-19

CHARLES E. BINKLEY

Surgeon and bioethicist Charles E. Binkley, MD, offers a perspective on how we might make sense of suffering, particularly in light of the present COVID-19 pandemic. Binkley suggests that through suffering, we are paradoxically able to find good, and in this instance, that good might be the practice of social reciprocity.

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In re C.P.

Docket: E072671(Fourth Appellate District)

Opinion Date: March 27, 2020

Judge: Raphael

Areas of Law: Constitutional Law, Family Law

The maternal grandparents of C.P. argued that the absolute statutory bar to placement of the child in their custody, either through approval as a resource family pursuant to Welfare and Institutions Code section 16519.5 or on an emergency basis pursuant to section 361.4, was unconstitutional as applied to them. The bar was triggered in this case by a disqualifying misdemeanor criminal conviction the grandfather had dating to 1991. The child (born 2011) was removed from mother’s custody in May 2017, after he was sexually abused by a maternal uncle; at the time of removal, mother, child, and uncle all resided in the home of the grandparents. The uncle is now incarcerated on a 20-year sentence for child molestation. Mother has been out of contact with CFS, and reportedly has moved out of state. The child was initially placed with a foster family, but in June 2017 he was moved to a group home capable of addressing his special health care needs related to autism. Mother failed to reunify with the child. The child was ordered to remain in the group home under a planned permanent living arrangement, with the goal of identifying an appropriate placement for legal guardianship. The grandparents started the resource family approval process, with the goal of having the child placed in their care, almost immediately after the child was removed from mother’s custody in May 2017. A social worker characterized grandparents as the “only constant” in the child’s life. The Court of Appeal agreed with grandparents that the absolute statutory bar to placement of the child in their custody would have been unconstitutional as to them if they could establish they had a parental relationship with the child, not just a grandparental relationship. The case was therefore remanded to the trial court to make the predicate factual findings and for consideration of the issue anew from that perspective.

People v. Cowan

Docket: A156253(First Appellate District)

Opinion Date: March 27, 2020

Judge: Streeter

Areas of Law: Criminal Law

After the denial of a motion to suppress evidence Cowan pleaded guilty to second-degree auto burglary, and, pending preparation of the probation report, agreed to a 16-month "hammer" term in county jail if he failed to appear for his sentencing hearing or to his probation interview. He failed to appear at both. At a continued sentencing hearing, the court rejected Cowan’s excuses and sentenced Cowan to three years’ formal probation, subject to the "hammer." The court imposed a restitution fine and court operations and facilities assessments. The court of appeal affirmed in part, rejecting Cowan’s argument that his detention in a traffic stop before his arrest violated the Fourth Amendment for lack of reasonable suspicion. The court reversed the 16-month jail sentence; imposing a jail term that exceeds 12 months as a condition of probation is an unauthorized sentence under Penal Code section 19.2. The trial court erred in overruling Cowan’s inability-to-pay objection; upon proper objection, a sentencing court must allow a defendant facing the imposition of a minimum restitution fine or court operations and court facilities assessments to present evidence and argument why these financial exactions exceed his ability to pay. Should the court, on remand, find the restitution fine to be excessive, the appropriate disposition is to decline to impose it, not to stay it.

Curcio v. Pels

Docket: B295293(Second Appellate District)

Opinion Date: March 27, 2020

Judge: Egerton

Areas of Law: Family Law

The Court of Appeal reversed a restraining order issued against defendant under the Domestic Violence Prevention Act (DVPA). The court agreed with defendant that the trial court's finding that she disturbed the peace was not supported by substantial evidence. In this case, the single, private Facebook post accusing plaintiff of abusing her, was insufficient to support the issuance of a domestic violence restraining order. The court also held that the remaining allegations do not support issuance of the restraining order because the trial court improperly shifted the burden of proof to defendant. Finally, the trial court abused its discretion when it extended the restraining order for an additional year.