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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Angelica C. v. Jonathan C.

Court: Alaska Supreme Court

Docket: S-16874

Opinion Date: March 20, 2020

Judge: Craig F. Stowers

Areas of Law: Family Law

A 19-year-old man had a sexual relationship with a 13-year-old girl, and she became pregnant. The man pleaded guilty to attempted sexual abuse of a minor in the second degree. While the man was incarcerated the girl gave birth to their son. When the girl was 17, she was arrested and sent to a juvenile correctional facility. A dispute arose over custody of the child and the superior court ultimately entered a custody order based on the parents’ stipulation. The mother was to have primary physical custody and the father would have regular visitation. When the mother’s living situation became unstable, the father sought to modify the custody order. Those proceedings, which included an earlier appeal to the Alaska Supreme Court, resulted in two orders of relevance here: (1) an order relating to the mother's attempt to terminate the father’s parental rights because his paternity was rooted in a criminal sex act; and (2) the father’s motion to modify custody and ultimate award of sole custody with visitation for the mother and both sets of grandparents. The superior court rejected the mother’s interpretation of former AS 25.23.180(e), which described an “independent proceeding” for the termination of parental rights of sexual abusers, and dismissed her petition. Meanwhile, in granting the father custody, the trial court concluded he overcame the domestic violence presumption that would have barred his custody. The Alaska Supreme Court concluded: (1) in the termination case, the superior court erred in rejecting the mother's petition; and (2) in the custody case, the trial court erred by failing to properly integrate the father's sexual abuse of the mother into its best interests analysis for awarding custody. Both orders were reversed and the matter remanded for further proceedings.

Native Village of Barrow v. Williams

Court: Alaska Supreme Court

Docket: S-16893

Opinion Date: March 20, 2020

Judge: Joel H. Bolger

Areas of Law: Civil Procedure, Constitutional Law, Family Law, Native American Law

At issue in consolidated appeals before the Alaska Supreme Court were the custody proceedings involving the same child before two courts of independent sovereignty: the State of Alaska and the Native Village of Barrow (NVB). A child custody case was initiated in the Utqiagvik superior court. Thereafter, NVB, through its tribal court, took custody of the child in a tribal child in need of aid (CINA) case. In 2016 the superior court ultimately denied the mother’s state court motion to modify custody. NVB sought to intervene in the state custody case, but the superior court denied its motion. The mother appealed the superior court’s denial of her motion to modify custody; NVB appealed the order denying its motion to intervene. The Alaska Supreme Court determined that under the Indian Child Welfare Act (ICWA), a superior court receiving a tribal court order to determine whether the order was issued in an ICWA-defined child custody proceeding and, if it was, was mandated to follow ICWA section 1911(d)’s full faith and credit mandate. The superior court erred in ruling that the NVB tribal court lacked jurisdiction without following the procedures underlying the process for giving full faith and credit to a tribal court order.

In re Andrew M.

Court: California Courts of Appeal

Docket: B294704(Second Appellate District)

Opinion Date: March 20, 2020

Judge: Dhanidina

Areas of Law: Family Law

The Court of Appeal reversed the juvenile court's order taking jurisdiction over his son. The court held that the juvenile court erred by failing to appoint counsel for father, despite his numerous requests. Because it was reasonably probable that a more favorable result would have been reached had the juvenile court appointed an attorney for father, the court held that the juvenile court's error required reversal. Therefore, the trial court is directed to appoint counsel for father and commence de novo an arraignment hearing and a jurisdiction hearing without delay.

In re B.E.

Court: California Courts of Appeal

Docket: G058062(Fourth Appellate District)

Opinion Date: March 23, 2020

Judge: Raymond J. Ikola

Areas of Law: Family Law, Government & Administrative Law

This proceeding concerned three children, ages seven, four, and two. Their parents had an extensive history of drug abuse, treatments, and relapses. After one such relapse in 2018, after a hypodermic needle was found under a sofa cushion in the family home, Orange County Social Services Agency ("SSA") petitioned to take the children into protective custody.Both mother and father consistently drug tested over the protracted course of the jurisdictional/dispositional hearing, which did not finish up until late July 2019, ten months after the children were removed. Welfare and Institutions Code section 361.5 (b)(13), allowed a court to bypass reunification services to parents if they had “a history of extensive, abusive, and chronic use of drugs or alcohol and [have] resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . .” This appeal concerned the meaning of the word “resist.” The parents in this case indisputably had the sort of history that satisfied the first condition of subdivision (b)(13). They contended, however, and the court found, that they had not resisted a court-ordered treatment program: they simply relapsed. SSA and the children appealed, contending that the parents’ extensive history of relapses irrefutably demonstrated so-called passive resistance. The Court of Appeal found it was "compelled" to break with the line of cases that interpreted subdivision (b)(13) as encompassing passive resistance, where passive resistance simply means relapse. "The bypass provision was intended for parents who refuse to participate meaningfully in a court-ordered drug treatment program, not parents who slip up on their road to recovery." The Court determined the parents her did not "resist" treatment; thus the trial court correctly offered them reunification services.

In re D.S.

Court: California Courts of Appeal

Docket: D076517(Fourth Appellate District)

Opinion Date: March 24, 2020

Judge: Guerrero

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law, Native American Law

M.J. (Mother) appeals the order entered following the jurisdiction and disposition hearing in the juvenile dependency case of her minor child, D.S. D.S. was living with his paternal aunt (Aunt), later determined to be his presumed mother. The Agency alleged D.S.'s father was deceased, Mother had previously caused the death of another minor, and Aunt was no longer able to care for D.S. As discussed in the detention report, Mother's parental rights were terminated after she was charged and convicted of killing D.S.'s brother. D.S. had been placed in the care of his father, who subsequently died suddenly in March 2018. Aunt assumed care for D.S., but reported to the Agency that she could not currently care for D.S. due to her own health issues. In a report prepared for the jurisdiction and disposition hearing, the Agency detailed its inquiry into whether the Indian Child Welfare Act applied to the proceedings. The Agency stated: (1) Mother denied having any Indian heritage; (2) D.S.'s great-grandmother stated that her great-grandmother (D.S.'s great-great-great-great-grandmother) was "affiliated with the Sioux and Blackfeet tribes;" (3) Aunt denied that she or [her grandmother] have ever lived on an Indian reservation, have a tribal enrollment number or identification card indicating membership/citizenship in an Indian tribe; and (4) Aunt denied she has any reason to believe D.S. was an Indian child. Mother contended the court erred by not complying with the inquiry provisions of the Indian Child Welfare Act. The Court of Appeal concluded after review that the juvenile court's finding that the Agency completed its further inquiry was supported by the evidence. Similarly, there is substantial evidence supporting the juvenile court's conclusion that "there is no reason to believe or know that [ICWA] applies."

J.M. v. W.T.

Court: California Courts of Appeal

Docket: B296295(Second Appellate District)

Opinion Date: March 25, 2020

Judge: Kim

Areas of Law: Family Law

The Court of Appeal reversed the trial court's order denying plaintiff's petition for a domestic violence protective order pursuant to Family Code section 6200 et seq., the Domestic Violence Prevention Act. The court held that the trial court abused its discretion in denying plaintiff's request for a continuance of the hearing where the basis for the trial court's denial was unclear; to the extent the trial court denied the request because plaintiff did not serve defendant with notice of either the request for a protective order or the request for a continuance before the January 29, 2019, hearing, section 245 does not require any such prior service; and plaintiff demonstrated good cause for a continuance of at least a few days. Finally, the court need not address plaintiff's remaining arguments concerning the trial court's denial of the request for a protective order.

Layman v. Bohanon

Court: Kentucky Supreme Court

Docket: 2019-SC-000364-DGE

Opinion Date: March 26, 2020

Judge: Michelle M. Keller

Areas of Law: Family Law

The Supreme Court reversed the decision of the court of appeals reversing a portion of an order of the family court that modified the parties' timesharing arrangement and recalculated child support, holding that the court of appeals erred. The family court issued an order modifying the parties' timesharing arrangement and holiday schedule and recalculating child support. The court of appeals affirmed the modification of the holiday scheduled but otherwise reversed. The Supreme Court reversed the decision of the court of appeals as to the issues before the Court, holding (1) the court of appeals incorrectly interpreted and applied Ky. Rev. Stat. 403.270 and Ky. Rev. Stat. 403.320; (2) the family court did not err in modifying the timesharing schedule; and (3) the family court did not err in calculating child support based on the parties' stated salaries and in declining to impute income to Wife for gifts received from her parents.

In re A.B.

Court: Montana Supreme Court

Citation: 2020 MT 64

Opinion Date: March 25, 2020

Judge: Beth Baker

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court terminating Mother's parental rights to her son, holding that the district court did not err in terminating Mother's parental rights. In terminating Mother's parental rights, the district court concluded that Mother's conduct was unlikely to change within a reasonable time and found that termination of Mother's parental rights, rather than a guardianship, was in the best interests of the child. The Supreme Court affirmed, holding that the district court (1) did not err when it determine that Mother's condition or conduct rendering her unfit to parent was unlikely to change within a reasonable time; and (2) did not abuse its discretion when it determined that termination was in the child's best interests and that Mother did not overcome the presumption in favor of termination.

Benton B. v. Cassidy T.

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0569

Opinion Date: March 23, 2020

Judge: Jenkins

Areas of Law: Family Law

The Supreme Court reversed the final order of the circuit court upholding the decision of the family court to deny Father's petition for modification of custodial responsibility, holding that the lower courts erred in failing to perform the required best interest analysis and in failing to provide specific findings with respect to the best interest of the parties' child. In his petition, which was based on the allocation of decision-making responsibilities under W. Va. Code 48-9-20, Father sought an order awarding him sole decision-making responsibility pertaining to medical and educational matters for the child. The family court denied the petition and ordered joint decision-making responsibility. The circuit court upheld the order. The Supreme Court reversed, holding (1) the lower courts used the wrong standard when denying Father's petition for allocation of decision-making responsibility; and (2) the lower courts erroneously failed to perform the requisite analysis of the child's best interests and failed to provide specific findings with respect to the child's best interest.

Stacey J. v. Henry A.

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0987

Opinion Date: March 26, 2020

Judge: Hutchison

Areas of Law: Family Law

The Supreme Court reversed the final order of the circuit court affirming the family court's order denying Mother's motion to relocate to Myrtle Beach, South Carolina with her two children and designating Father as the children's primary residential parent, holding that not only did the family court erroneously rely upon a single factor in its analysis of the children's best interests, but its conclusion as to that factor was not supported by the record. The family court denied Mother's motion to relocate the children to Myrtle Beach, designated Father as the primary residential parent, and adjusted child support obligations accordingly. On appeal, Mother argued that the family court failed to conduct a proper analysis of the children's best interests for purposes of determining where they should reside following her relocation. The Supreme Court agreed, holding that the family court's order contained insufficient findings of fact and conclusions of law to support its determination that it was in the best interests of the children to reside primarily with Father and that the family court should have undertaken an assessment of the custodial responsibility each parent was undertaking to determine which statutory principle to apply under W. Va. 48-9-403(d).

Malli v. Malli

Court: Wyoming Supreme Court

Citation: 2020 WY 42

Opinion Date: March 24, 2020

Judge: Gray

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the district court entering a divorce decree in which it awarded a 160-acre parcel of land to Wife and required Husband to satisfy any unpaid property taxes, holding that the court did not abuse its discretion in its property division and assignment of debt or in considering attorney's fees as a factor in its property division. During much of their marriage, Wife and Husband lived on a 160-acre parcel of land owned by Husband's parents. After Husband's parents deeded the parcel to Husband, Wife filed for divorce. The district court awarded the property to Wife and required Husband to satisfy any unpaid property taxes. The Court noted that Wife's requests for an award of attorney's fees during the proceedings were considered in arriving at its division of property. The Supreme Court affirmed, holding that the district court did not abuse its discretion in the disposition of property or in its consideration of attorney's fees.