March 14, 2013

Demi Moore is Seeking Spousal Support in Divorce From Ashton Kutcher

1229466_dollar_sign.jpg It is no secret that Demi Moore and Ashton Kutcher separated more than a year ago. The news spread through the tabloids in no time. But it took until this past December for one of the parties to file for divorce. According to a Huffington Post article, Kutcher filed first and Moore just recently responded by filing her own papers. The intriguing, and perhaps surprising part of this story is that Demi Moore is seeking spousal support from Kutcher. When a couple decides to end their marriage, often one of the parties is entitled to spousal support. If you or someone you know is contemplating divorce, it is imperative that you seek the advice of an experienced San Diego family law attorney, as early in the proceedings as possible, to identify and help protect your rights.

The article reports that Moore, who is 50-years-old, is asking Kutcher for spousal support and, to pay her attorney's fees, despite that she is worth (financially) more than he is. Some news sources have speculated that Moore was hurt by an affair Kutcher was thought to be having with a 23-year-old woman right before their separation. Reports also suggest that Moore is upset about Kutcher's publicly known relationship with Mila Kunis, an actress who starred in "That 70's Show" years ago, along with Kutcher.

From a financial standpoint, the request for spousal support seems to be stemming from bad feelings rather than a need to get by. According to the article, when Moore divorced Bruce Willis, she received $90 million. Currently, she is reported to be worth $150 million, compared to Kutcher's reported worth of $140 million. The decision on the amount, if any, of spousal support Demi Moore is entitled to will be determined by the court.

Under California law, when parties are divorcing, the court may order one spouse to pay the other a specified amount of money for support each month. A judge will look at what each spouse is able to earn to keep their standard of living as close to what they had during the marriage. In order to do this, the court will consider a variety of factors: (1) any marketable skills of the spouse receiving the support; (2) the current job market for those skills; (3) the expense and time it will take for the spouse who receives the support to obtain the training or education to get a job or to develop marketable skills or; (4) the extent that the earning capacity of the spouse who receives the support was adversely affected by unemployment during the marriage due to domestic responsibilities.

When one considers the above factors, it will be interesting to see what a court will order in terms of spousal support for Demi Moore. She seems to have earning potential and to be worth a great deal of money. For divorcing spouses who are not famous actors, the situation can be quite different. In order to ensure that you are treated fairly when it comes to spousal support, it is important to have an attorney who you can trust to protect your rights.

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March 7, 2013

California Appellate Court Ruled Waiver of Spousal Support in Prenuptial Agreement Violated Public Policy at Time of Execution

1221952_to_sign_a_contract_3.jpg Raymond and Roberta Melissa were married on August 8, 1985. He was 41 and she was 32. He owned a Newport Beach home, a jaguar and had a net worth of over $2 million. She rented an apartment and worked as a nurse. As a condition to getting married, Raymond required Roberta to sign a prenuptial agreement that was drafted by a neighbor's attorney-son, Craig Wilford. Roberta did not hire her own attorney to review the document, even though Wilford told her she could. The parties signed the agreement in 1985.

The issue contested in this case pertains a clause that relieves both parties of the responsibility to provide spousal support in the event of a divorce or legal separation. This part of the prenuptial agreement specifically and explicitly recognized that California law (at the time of the document's execution) prohibited the future waiver of spousal support. The agreement even cited the case, In re Marriage of Higgason, as standing for that current state of the law. However, the agreement further provided that the law regarding waiver of spousal support was in "a state of flux" and because of that, they agreed to mutually waive such rights.

The parties subsequently had a son who has autism and suffers from Fragile-X syndrome. Back in 1997, Roberta stopped working full-time. In the fall of 2009, the parties separated and then Roberta filed a petition for divorce shortly thereafter. Roberta continued to care for their son who is now 24-years-old, and works as a part-time janitor, earning $9 per hour. Roberta is unemployed.

The issue before the trial court was whether the prenuptial agreement was valid. The court's main two concerns were (1) whether it was required to apply the law in effect in 1985 when the agreement was executed; and (2) if so, whether the waiver of spousal support clause was void as against public policy. The court reviewed the Higgason case, relevant statutes and the later decision in In re Marriage of Pendleton & Fireman, and ultimately decided that it was required to apply the law at the time of execution. In so doing, the court held that it was "very clear" that spousal support waivers were void as against public policy in 1985. The court noted that relevant statutory amendments, as well as the decision in the Pendleton case, failed to overrule the Higgason case. The court entered a partial judgment holding the spousal support waiver invalid. Raymond appealed.

The court of appeals affirmed the decision. After reviewing the evolution of spousal support waivers, and the reasons for holding such provisions as against public policy (namely the preservation of marriage and its connection to society's welfare), the court pointed out that things have changed over time. In Higgason, the court held the waiver of support to be against public policy because it sought to change the wife's statutory obligation to support her husband. A later case, In re Marriage of Dawley, added to this notion by holding that public policy renders an agreement unenforceable when it promotes or encourages dissolution of the marriage.

The status of the law in 1985 was that any written waiver of the statutory duty to mutually support each other was void as against public policy. The court of appeals refused to accept the language in the parties' agreement as circumventing the law in 1985. Despite the enactment of the Uniform Premarital Agreement Act in 1986 (which failed to specifically address waivers of spousal support at the time), and the later decision in Pendleton that acknowledged the shift in public policy regarding such waivers, the court concluded that it was required to apply the law as it existed in 1985.

As a side note, in response to the decision in Pendleton, in 2002, the Legislature amended the statute requiring spouses to be represented by counsel before waiving spousal support in a prenuptial agreement, among other things.

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February 28, 2013

U.S. Congress Passes Renewal, Expansion of Violence Against Women Act

OneBillionRising.FarragutSquare.WDC._14February2013-oldwomen.jpgThe U.S. House of Representatives passed the Violence Against Women Act (VAWA) on February 28, 2013, ending months of wrangling over various expanded terms included in the reauthorization of the law passed by the Senate. First enacted in 1994, VAWA provides federal funding to support investigation and prosecution of violent crimes against women, including domestic violence, and by allowing civil claims by victims of violent crimes. The reauthorized version, which will now go to the president for his signature, includes expanded protections for Native American, immigrant, and LGBT populations.

Domestic violence is a tragic and unnecessary occurrence in divorce. A simple search on the web of words like "divorce" will quickly lead to news stories of domestic violence incidents, some fatal. While domestic violence can affect anyone, the common perception is of men or husbands as the perpetrators. We condemn all domestic violence, and we support efforts at prevention and support of victims.

Then-Senator Joseph Biden drafted the original VAWA bill. It passed both houses of Congress with bipartisan support, and was signed into law by President Clinton on September 13, 1994. Congress has reauthorized it twice before this year, in 2000 and 2005. The White House claimed earlier this year that domestic violence rates decreased by sixty-seven percent between 1993 and 2010, and that more victims are willing to report assaults. VAWA created the Office on Violence Against Women (OVW) in the Department of Justice, which assists communities in creating policies and programs to combat "domestic violence, dating violence, sexual assault, and stalking." It also administers grant programs that support local governments, nonprofit and community organizations, and schools that are developing programs to assist victims and improve law enforcement.

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February 21, 2013

Nullify, Dissolve, or Legally Separate? Understanding California's Divorce and Annulment Laws

795735_66817305.jpgWhen married couples and domestic partners in California seek a formal end to their relationship, the most common procedure is divorce, legally described as a dissolution of marriage or domestic partnership. California law allows alternatives to jumping head-first into a divorce. In relatively rare instances, couples may be able to annul their marriage, which wipes the slate clean in a legal sense. Couples can legally separate, either to make gradual changes to their finances, or to conduct a "trial separation" before divorce. Some couples choose to remain legally separated but never divorce, while other reconcile after a period of separation.

Grounds for Divorce or Legal Separation

Divorce and legal separation follow the same procedural rules. A spouse seeking a divorce or legal separation must petition a court, and must first state grounds for the divorce or legal separation. California is a "no fault" state, meaning that a spouse does not need to show specific wrongdoing by the other spouse in order to obtain a divorce or legal separation. The two grounds for divorce in California are "irreconcilable differences" and "incurable insanity." Irreconcilable differences, defined as reasons identified by the court that show that the marriage should not be continued, is by far the more common ground cited in divorces and legal separations. Incurable insanity requires medical or psychiatric evidence showing that the spouse was insane at the time the other spouse filed for divorce or legal separation, and continued to be insane up to the present.

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February 14, 2013

International Adoptions in California May Begin Again from Central Asia

Kyrgyzstanmap.pngA group of prospective adoptive parents from around the United States, including California, learned that they may be able to adopt the children they have grown to know and love after multiple years of waiting. The government of Kyrgyzstan in central Asia announced that it has amended its Family Code to allow international adoptions, after blocking the American families several times. International adoption has been a popular procedure among Americans in recent years. California law also provides several methods for adopting within the state or the U.S.

Kyrgyzstan suspended all international adoptions in 2008 due to multiple allegations of fraud in its social services programs. At that time, American families were waiting for final approval to adopt sixty-five Kyrgyz children. Those families, now known as the "Kyrgyz 65," have continued to wait for more than five years. During that time, Kyrgyzstan experienced a revolution in 2010 and a civil war between the country's Kyrgyz majority and Uzbek minority groups. A few of the Americans gave up during that time, and a few of the children were adopted domestically.

The Kyrgyz government lifted the ban on international adoptions in 2011, allowing some of the adoptions to go through. It reinstated a ban on most of the remaining adoptions in progress in 2012, pending further corruption investigations. Many international adoptions rely on the Hague Adoption Convention, which sets international standards for adoptions between countries, including safeguards of children's welfare and protections against fraud, corruption, and abuse. The U.S. signed the Hague Convention in 1994, shortly after its creation, and it gained the full force of law here in April 2008. Kyrgyzstan has not signed the Hague Convention, but many of its reforms since freezing international adoptions are purportedly intended to bring the country's system in line with the Convention. As of February 26, 2013, the country has lifted the ban.

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February 7, 2013

California Divorce Report: Actress Liberty Ross Files for Divorce from Director Rupert Sanders

Rupert_Sanders,_2012.jpgActress and model Liberty Ross filed for divorce from her husband, director Rupert Sanders, in late January 2013 in Los Angeles. The couple was in the news last summer after the story broke of an "affair" between Sanders and Kristen Stewart, who was the lead actress in his first feature film. Neither spouse has made a public statement, so the role of the affair in the divorce is only speculation.

Ross reportedly filed a divorce petition in Los Angeles County Superior Court on January 25, 2013. She and Sanders have been married for nearly ten years, and have two children, ages eight and six. Both Ross and Sanders are British, and they moved to Los Angeles for his film career. Ross has had a successful career as a model, and has also acted in several films. She had a role in Sanders' first feature film, Snow White and the Huntsman. Ross pleaded irreconcilable differences in her divorce petition. She is seeking custody of the two children and spousal support. Sanders is reportedly asking for joint custody and shared attorney's fees.

Actress Kristen Stewart played the title role in Snow White. Sanders cast Ross in the role of Snow White's mother. A story appeared in July 2012, around the time of the film's theatrical release, that Sanders and Stewart had a "massive makeout session." Descriptions of the incident range from an "affair" to a "hook-up" or "fling," depending on who is describing it. By most accounts, it was a single incident as opposed to a lengthy relationship. Both Sanders and Stewart issued public apologies. A lengthy series of deconstructions of the "affair," as well as media examinations of Sanders' marriage to Ross and Stewart's relationship to then-boyfriend Robert Pattinson, ensued for much of the rest of the summer.

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January 30, 2013

Man Takes Wife's Name After Wedding, Is Accused of Fraud by State

file000468769683.jpgA Florida man who decided to take his wife's last name discovered that the state's Department of Motor Vehicles (DMV) suspected him of fraud as a result. Florida, along with most U.S. states, only provides a simple method for women to change their names upon marriage. A few states, including California, allow spouses of any gender to take the other spouse's name. While a wife taking her husband's name is a longstanding tradition, many couples are finding other options.

According to Reuters, Lazaro Dinh, née Sopena, married Hanh Dinh in 2011. In an "act of love," he decided to take her last name to preserve her family's name. His wife, who is originally from Vietnam, reportedly lived in refugee camps with her sisters, spending seven years separated from their father, before immigrating to the United States in 1990.

After the wedding, Dinh was able to obtain a new driver's license from the Florida DMV by showing his marriage certificate to a clerk and paying a fee. This is the procedure followed by newlywed women all over the country. He also obtained a passport showing his married name. In December 2012, over a year after the wedding, Dinh reportedly received a letter from the DMV, addressed to Lazaro Dinh, that accused him of fraud. It stated that the DMV would suspend his license within weeks.

Dinh called the main DMV office in Tallahassee and spoke to an official who told him he should go through the non-marital name change process. This requires a petition to a court with a $400 filing fee. The DMV official allegedly told Dinh that the marital name change process "only works for women." At a hearing on January 14, the DMV issued a Final Order holding that his license suspension for "fraud" was proper. Dinh is appealing the order, but remains unable to drive.

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January 24, 2013

Court Rules on Definition of a "Nonminor Dependent" Under California Law

Children in California's foster care system used to "age out" of the system automatically upon reaching the age of eighteen, abruptly ending their access to services. Young adults found themselves turned loose without necessarily having the means or the skills to thrive in the adult world. California passed the California Fostering Connections to Success Act (CFCSA) to correspond to a federal statute and allow "nonminor dependents" to continue in the foster system long enough to acquire the means to join society. A California appellate court recently considered how to apply the definition of "nonminor dependent" in the case of a child who turned eighteen while in the system. In re K.L., No. D061577, slip op. (Cal. App. 4th, Oct. 25, 2012).

The CFCSA became effective on January 1, 2012. Juvenile courts may maintain dependency over qualifying individuals who have turned eighteen but not yet turned twenty-one. The California Welfare and Institutions Code defines a "nonminor dependent" in § 11400(v) as someone who turned eighteen while in a foster care placement under county or Indian tribal jurisdiction; who was eighteen years old or younger on January 1, 2012; and who is involved in a "transitional independent living case plan."

The case before the court involved K.L., a child who turned eighteen in September 2011. The San Diego County Health and Human Services Agency (the "Agency") had filed a petition under Welfare and Institutions Code § 300(d) based on allegations that her father had sexually abused her. The Agency removed her from her father's home in September 2010, claiming that K.L.'s mother knew she was not safe in her father's home, but had moved out three months earlier. The court declared K.L. a dependent child and ordered reunification services for the mother.

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January 10, 2013

Child Custody Order Reversed Based on Evidence of Court-Appointed Expert Witness' Bias

Laguna_Beach.jpgThe California Court of Appeals, Fourth Appellate District reversed an order awarding sole custody of a child to the mother. The court ruled in In re Marriage of Adams, Case No. G045920, slip op. (Cal. App. 4th, Oct. 16, 2012), that a court-appointed expert witness displayed bias against the father and in favor of the mother that unduly influenced the remainder of the proceedings.

The parties' son, identified as J., was diagnosed with Asperger's Syndrome, an autism spectrum disorder, when he was very young. By all accounts J. is a very intelligent child, and both parents care for him very much. The parents have differing views on the best way to care for him, however. When J.'s parents divorced in 2008, they agreed to submit future disputes regarding J. to a licensed mental health professional who would act as a special master. If either parent disagreed with the special master's recommendation, they could petition the court. The parents shared joint custody of J., with a schedule of visitation periods.

A disagreement regarding where J. should attend middle school arose in 2010. The parties eventually agreed to the appointment of David J. Jimenez as an expert witness, pursuant to California Education Code § 730, to conduct psychological evaluations of J. and the parents, in order to make a recommendation as to custody and school enrollment. Jimenez recommended that J. attend school in the Laguna Beach Unified School District, the mother's preference.

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January 10, 2013

Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court

file0001373070796.jpgA husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

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December 27, 2012

Court Upholds Order Unsealing Pleadings in NASCAR CEO's Divorce Matter

file8651274380509.jpgThe issue of confidentiality of financial records in a divorce matter recently came before the North Carolina Court of Appeals. The court affirmed a lower court's order unsealing the documents in a man's post-divorce proceeding against his ex-wife, in which he alleges that she breached confidentiality provisions in their pre-nuptial agreement. After one judge initially sealed the pleadings, a different judge unsealed them, citing the public's interest in open judicial proceedings. The appellate court affirmed this decision in France v. France, No. COA12-284, slip op. (N.C. App., Dec. 31, 2012).

The plaintiff, Brian France, was married to and divorced the defendant, Megan France, on two separate occasions. Their second marriage, which began in December 2007, included a pre-nuptial agreement. In exchange for certain financial benefits in the event of divorce, the defendant agreed to keep any financial information in her possession about the plaintiff confidential, unless she was compelled by law to disclose such information. Breach of the confidentiality provisions, according to the pre-nuptial agreement, would constitute a material breach creating a cause of action for damages.

The couple separated in 2008. While the details of their divorce were kept confidential, statements made on the record in court indicated that the plaintiff, who is the chief executive officer of the National Association for Stock Car Auto Racing (NASCAR), would pay the defendant $9 million, as well as child support of $10,000 per month and alimony, for a period of ten years, of $32,000 per month.

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December 21, 2012

Technology Intersects with Privacy and Discovery in Divorce Cases

_DSC0835.JPGDiscovery in divorce litigation can be protracted and difficult, as it may involve the parties' efforts to find "dirt" about each other. New technologies have expanded people's ability to communicate, and accordingly, the number of potential sources for incriminating information in a divorce matter. Communications technologies, like email and social media, are an obvious potential source of discovery. New, "smart" technologies, including not only smartphones but other devices that record and communicate data, are also becoming a frequent subject of discovery requests and subpoenas. As these technologies quickly develop, the usefulness of such data in divorce litigation and other legal matters, especially criminal investigations, must be balanced with privacy rights.

One of the newest innovations are "smart meters," used to measure usage of energy in homes and share data with the utility companies, according to an article this month by National Geographic. Devices like these may one day form part of a "smart grid," which may allow utilities and other industries to meet customers' needs efficiently and respond quickly to outages and other problems. The technology is also controversial, as people may not know exactly what data their device is sending, who may see that data, and how the recipient may use that data. Data on daily energy usage, for example, could easily establish when someone is home or away, and hackers could intercept the data and use it to plan burglaries. A less alarmist view is that the data could also be subject to subpoena during a divorce case, adding a whole new dimension to the type of evidence introduced in a court proceeding.

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December 14, 2012

State Laws Present Difficulties for Transgender Man in Divorce Case

701085_49601368.jpgThe case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.

Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.

He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.

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December 6, 2012

Juvenile Court May Exercise Jurisdiction Over a Child Even Without Parental Negligence or Abuse - In re Maricela H.

800px-OldPasadena3.JPGA mother appealed a court order giving jurisdiction over her daughter to the juvenile court. She argued, in In re Maricela H., that insufficient evidence existed to support the court's finding because no evidence demonstrated that she was in any way abusive or negligent. The appellate court held that the plain language of the statute does not require actual abuse or negligence, and that the evidence supported the court's ruling. A dissenting judge held that, even with the majority's interpretation of the statute, the juvenile court's jurisdiction was unwarranted.

According to the appellate court's opinion, the mother had little to no control over her daughter, Maricela H. The girl rarely told her mother where she was going, and she abused drugs and alcohol. The mother took Maricela's son in 2010 and cared for him after Maricela gave birth to him at the age of 15. Maricela reportedly left home again on September 16, 2011 and threatened to take the baby with her. In response, the mother contacted the police and the Department of Children and Family Services (DCFS).

DFCS took the baby into custody and placed Maricela into a Pasadena group home. Maricela reportedly expressed a desire to improve, but she continued to act out and abuse drugs. After she ran away from the home on November 8, 2011, she was detained, and DCFS filed a petition under California Welfare and Institutions Code § 300 to have her declared a dependent. Her behavior reportedly improved after that incident. The court declared her a dependent under § 300(b), based on a finding that she was at risk of "serious physical harm or illness" due to her mother's "failure or adequately supervise or protect" her. The mother appealed this decision.

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November 29, 2012

Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding

933457_17536502.jpgA mother appealed a juvenile court's declaration of dependency over her eleven year-old daughter in In re Destiny S. The court had taken her daughter from her custody and placed her with a family member. It entered an order finding that the daughter was at risk of physical harm, citing the daughter's school tardiness during the previous year and the mother's history of drug use. The appellate court reversed the trial court's ruling, finding that the evidence did not support any risk of "serious physical harm."

The Department of Children and Family Services (DCFS) received a report in September 2011 that an unknown individual was sexually abusing eleven year-old Destiny S. After an investigation, DFCS determined that the allegation was "unfounded." Destiny's mother, Rosemarie H., admitted to DFCS investigators that she smoked marijuana every week, and that she had previously used methamphetamine. DFCS petitioned the court to declare Destiny a dependent because of Rosemarie's drug use. It cited § 300(b) of the California Welfare and Institutions Code, which gives the juvenile court jurisdiction over a child when the court finds "substantial risk" of "physical harm or illness" because a parent is unwilling or unable to provide proper supervision. The court placed Destiny in the custody of her maternal grandmother when her mother tested positive for methamphetamine use.

Evidence presented at a hearing in January 2012, which was not contradicted, showed that Destiny was a "healthy, happy preteen," that she had a good relationship with her mother, and that her mother took good care of her. Destiny stated that she wanted to live with her mother. The principal of Destiny's school said that she attended school and had no discipline problems, and that the tardiness problems of the previous year had not continued. The mother had three months of negative drug tests. The juvenile court nevertheless concluded that Destiny faced the risk of substantial physical harm in her mother's custody, based on her history of school tardiness and her mother's drug use.

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