California Family Law Report

Case of the Month Archive

SCRA requests are to be broadly construed to protect servicemembers . . .

In reversal, Fourth District holds that juvenile court erred by refusing to order stay of dependency proceedings in response to father’s request under the Servicemembers Civil Relief Act because his application, at minimum, substantially complied with Act’s requirements

During her almost six year relationship with Ian M., Lousha had two children, Amber and Ian. Lousha and the kids are members of the Navajo Nation, while Ian is a member of the Hopi Tribe. Sometime before February 2009, Ian told Lousha that he wanted to break up with her. On hearing that news, Lousha assaulted Ian, with the kids watching. One month later, the couple, in Amber’s presence, had a heated argument over moving expenses during which Lousha poured coffee over Ian’s head and hit him with a bowl. She was later arrested for spousal abuse and Ian got a restraining order against her.

Shortly thereafter, the San Diego County Health & Human Services Agency (HHSA) filed a petition to make 2-year-old Amber and 1-year-old Ian dependents of the juvenile court under W&I C §300(b), based on their exposure to domestic violence and their parents’ failure to protect them from the risk of physical harm. Lousha attended the detention hearing, but Ian, who had been an avionics technician in the Navy for 13 years, was unable to attend because he was sequestered prior to his deployment to Iraq, scheduled for February 19, 2009. Ian was not expected to return until February 10, 2010. His attorney told the juvenile court that Ian would not have a personal address until he reached Iraq, and provided the court with Ian’s parents’ address in Arizona; he also asked the court to place the kids with Ian’s parents. Lousha’s attorney argued that Ian’s deployment removed the risk of continued domestic violence and asked the juvenile court to order the kids to be detained with Lousha, who agreed to participate in voluntary services. The juvenile court found prima facie evidence that the children fell under W&I C §300(b), but, noting no allegation of neglect, ordered them temporarily detained with Lousha, on the condition that she promptly participate in voluntary services.

At the jurisdiction and disposition hearing in April 2009, representatives of both the Navajo and Hopi tribes sought leave to intervene in the case. The attorneys for each of the parents asked that the children be detained with their clients and sought a transfer of the case to each one’s tribe. The juvenile court, however, continued the children with Lousha and scheduled a contested jurisdiction and disposition hearing for June 9, 2009.

Ian then filed a request for a stay of the proceedings under the Servicemembers Civil Relief Act [SCRA; 50 USCA 501 et seq.], stating that during his one-year deployment to Iraq, he would be unable to appear at any scheduled hearings, to reunify with his children before the statutory time limit for doing so expired, and to participate in reunification services. Ian contended that he would be prejudiced if the juvenile court refused to order a stay. Ian also submitted a letter from his commanding officer, confirming that Ian was ordered to Iraq, would not be able to attend the hearing on June 9, and was expected to return in February 2010. In opposition, HHSA contended that Ian’s request did not meet the statutory requirements of 50 USC 522(b) because it failed to show how his ability to attend the June 9 hearing would be materially affected by his deployment, when he would be able to appear, how his military service prevented him from appearing, and that he was not entitled to leave between the completion of his training and his actual deployment. In a supplemental report submitted before the hearing, HHSA stated that Ian had planned to be in town during the weekend of April 25 and 26, 2009, had asked Lousha for visitation at that time, and had been in town again on May 5, 2009. The Navajo Nation also filed opposition to the stay request, arguing that it should not be granted because the letter from Ian’s commanding officer failed to state whether Ian had requested leave or leave was unauthorized.

At a hearing on May 22, 2009, the juvenile court questioned why Ian had not asked for a hearing to take place when he was in town on May 5, and noted that the letter from his commanding officer failed to explain why Ian could not attend other hearings after June 9, 2009. Ian’s attorney advised the court that Ian was considered deployed as of February 2009, after which he was in training at various bases, the location of which he was not authorized to reveal. The juvenile court then granted a continuance to allow Ian time to supplement the information from his commanding officer and to state whether he could appear telephonically.

At the June 9 hearing, the juvenile court stated that it had not received any further information. Ian’s attorney advised the court that she had received no reply to her request for additional information, and that Ian had left for Iraq two or three weeks ago. Counsel asked the court to either grant another continuance or to order a stay of the proceedings. The social worker testified that when she spoke to Ian by phone shortly before the May 22 hearing, he was either en route to or in Iraq. Lousha told the court that she had contacted Ian through email because he had turned off his cell phone because of its expense. The juvenile court then denied the request for a stay and refused to order a continuance. The court found that the kids were subject to W&I C §300(b), but did not declare them dependents. Continuing them in Lousha’s care, the juvenile court ordered HHSA and the Navajo Nation social services agency to coordinate on developing a voluntary service plan for her. The court reaffirmed Ian’s right to unsupervised visitation with the children, and terminated jurisdiction.

Ian appealed, and the Fourth District reversed and remanded.

To protect and serve . . .
The justices noted that as set forth in 50 USC 502, the SCRA is intended to “provide for, strengthen, and expedite the national defense” by protecting our servicemembers so that they can “devote their entire energy to the defense needs of the Nation”. To that end, the statute authorizes the trial court in any proceeding, except a criminal proceeding, to temporarily suspend the matter for 90 days if failing to do so “may adversely affect the civil rights of servicemembers during their military service.” Moreover, they continued, as the court held in George P. v. Superior Court (San Luis Obispo County) (2005) 127 Cal.App.4th 216, 24 Cal.Rptr.3d 919, 2005 CFLR 9912, 2005 FA 1184, SCRA requests must be broadly construed to ensure that servicemembers are not placed at a disadvantage because of their service to our nation. When applying for an SCRA stay, the panel explained, the servicemember must state facts that show how his or her duty requirements materially affect his or her ability to appear and give a date when he or she will be available to appear; a letter from the commanding officer describing how current military duty prevents the servicemember from appearing and that leave is not currently authorized. Upon receiving such an application, the justices went on, the trial court must grant a stay of no less than 90 days, and may grant an additional stay on proper application. And, per In re A.R. (2009) 170 Cal.App.4th 733, 88 Cal.Rptr.3d 448, 2009 CFLR 11138, 2009 FA 1377, the SCRA applies in juvenile dependency proceedings like this one.

Ian has left the building . . .
The justices next looked to see whether Ian’s SCRA application met the statutory requirements. The application stated that he would be unavailable to appear at any court proceedings for a year because of his deployment to Iraq. That time frame was supported by the letter from his commanding officer, which also stated that Ian was not available to attend the June 9 hearing. The panel said that they could infer from those representations that Ian was not authorized to take leave. Moreover, the testimony of the social worker and Lousha confirmed the fact that Ian had deployed and had arrived in Iraq before the June 9 hearing. In addition, Ian’s attorney told the lower court that his client lacked ready access to a phone and could be reached only by email, the latter was also confirmed by Lousha’s testimony. The justices found it “of no moment” that the juvenile court believed a phone appearance would suffice; nothing in the SCRA supports that belief, they said. On the contrary, the panel thought that the statutory requirement that the servicemember demonstrate inability to appear was a clear indication that a physical appearance was necessary. Thus, the panel concluded, the lower court erred in determining that Ian’s application failed to meet the statutory requirements of the SCRA.

Close enough for government work . . .
The panel also reiterated that trial courts are not to give SCRA an “overly technical” interpretation. Therefore, even if the letter from Ian’s commanding officer failed to meet specifically all of the requirements, it substantially complied with them. The justices again emphasized that as the United States Supreme Court said in Le Maistre v. Leffers (1948) 333 U.S. 2, “ ‘the Act must be read with an eye friendly to those who dropped their affairs to answer their country’s call.’ ” Moreover, the justices found persuasive out-of-state authority, such as In re Marriage of Bradley (2006) 282 Kan. 1, 137 P.3d 1030, in which those courts held that a trial court has discretion to stay proceedings even if the servicemember’s SCRA application fails to meet statutory requirements. Summing up, the panel found that the juvenile court had sufficient evidence of Ian’s unavailability and that Lousha would not be prejudiced by a stay, since the kids would remain with her. Therefore, the justices held, the juvenile court abused its discretion by failing to order a stay. Accordingly, they reversed and remanded for further proceedings.