Wednesday, September 13, 2006
Woman May Reunite With Children After Partner Killed Niece—C.A.
Criminal Standard Applied in Dependency Case of Parent Who Allegedly Caused Another Child’s Death Through Neglect
By TINA BAY, Staff Writer
Juvenile courts must apply criminal liability principles in determining whether a parent caused the death of another child through neglect, the Fourth District Court of Appeal has ruled.
In a unanimous opinion issued Aug. 30 but published yesterday, Div. One vacated an order by San Diego Juvenile Court Judge Julia C. Kelety denying family reunification services to a mother of two whose live-in boyfriend fatally abused her sister’s baby in their home when she was not present.
The incident occurred last December when the mother, identified as “Jorgelina E.,” left her children with her boyfriend and her sister at the home in which they all lived. Jorgelina’s sister went to run an errand, leaving her 22-month-old daughter, “Dayanara V.” and Jorgelina’s children with Jorgelina’s boyfriend, “Enrique R.” At some point, Enrique assaulted Dayanara, causing a skull fracture and other severe trauma to her body that resulted in her death.
The San Diego County Health and Human Services Agency subsequently removed Jorgelina’s children, 10 months old and six years old at the time, from her custody.
Ruling on the agency’s petitions, Kelety found that Jorgelina caused Dayanara’s death by neglect within the meaning of Welfare and Institutions Code Sections 300(f) and 361.5(b)(4).
Sec. 300(f) authorizes a juvenile court to take jurisdiction of a child when the child’s parent has caused the death of another child through abuse or neglect, and Sec. 361.5(b)(4) further empowers the court to deny reunification services to a parent when it finds by clear and convincing evidence that the parent has caused the death of another child through abuse or neglect.
Kelety held that Jorgelina committed neglect by failing to take reasonable steps to protect her niece although she was aware of Enrique’s previous abusive pattern toward the toddler. For example, the record showed that Jorgelina knew Enrique hit Dayanara with a horsewhip and immersed her in cold water. Kelety concluded that because Jorgelina caused Dayanara’s death by neglect, she was incapable of protecting her own children from abuse.
But the court of appeal disagreed with Kelety’s definitions of neglect as well as causation. Writing for the court, Justices Alex C. McDonald said:
“We conclude the juvenile court applied an incorrect legal standard when it ruled that findings under section 300, subdivision (f) and section 361.5, subdivision (b)(4) could be sustained if the evidence showed the parent was aware of the ‘danger posed by another’ and did not ‘act reasonably toward a child.’”
The Legislature did not intend to import ordinary standards of civil negligence into those provisions, but rather incorporated principles of criminal liability with a lesser standard of proof, McDonald wrote, explaining the sections’ legislative history.
Applying criminal law principles, the justices held there was insufficient evidence to support Kelety’s finding that Jorgelina caused Dayanara’s death.
“Although Jorgelina. . . might have done something to prevent Dayanara’s death, Jorgelina’s failure to act or to act effectively is not so closely connected to the fatal incident of abuse that it can ‘properly be regarded as a substantial factor in bringing about the particular result,” McDonald said.
Concluding a remand was unnecessary to also determine whether her conduct rose to the level of criminal negligence, the justices directed Kelety to enter a new order providing Jorgelina with six months of reunification services.
McDonald noted that the court was not ignoring the abuse leading to Dayanara’s death. The abuser’s culpability would be addressed separately in criminal proceedings, he said.
Justices Patricia C. Benke and Terry B. O’Rourke concurred in the opinion.
Kathleen M. Mallinger, who represented Jorgelina E. on appeal, told the MetNews that the court’s decision provided needed guidance for juvenile court judges who must make right decisions in the most serious of cases where a child has died.
“These cases are very, very difficult for everyone involved,” she remarked. “They’re cases where the judge really has to think, ‘What did the Legislature want? How do I look at the culpability of the person in front of me, who was not present when these horrible acts occurred, who could not have predicted that this child would have died, but did live in a household with a man who had been abusive in the past…?”
“I think it was a good decision,” Mallinger said, adding that the health and human services agency has already served her with a copy of its petition for review to the state Supreme Court.
The agency’s appellate counsel, John E. Philips, told the MetNews:
“We believe that the appellate court has inappropriately put criminal standards on a juvenile dependency proceeding, which is more civil in nature, and that by doing so, the decision is inconsistent with the purposes of juvenile dependency law, which are to provide maximum safety and protection for children.”
Under the court’s decision, Philips said, children of a parent whose neglect has led to the death of another child might not get the same degree of protection and services that other children do in the system.
“The battle’s not over yet,” he added.
The case is Jorgelina E. v. Superior Court of San Diego County, 06 S.O.S. 4885.
Copyright 2006, Metropolitan News Company