Metropolitan News-Enterprise


Tuesday, August 25, 2009


Page 1


Parent Must Pay to Support Son Who Molested Stepsisters—C.A.




A state law requiring a parent to support a child in foster care applies when the child has been placed because he committed a crime against another of the parent’s children, the Third District Court of Appeal has ruled.

In affirming a Yolo Superior Court judge’s order, the justices Friday rejected the argument that an exception for cases in which the parent is the victim of the minor’s crime should extend to the parent’s other minor children. That argument is contrary to the plain meaning of the statute, Justice Tami Cantil-Sakuye wrote for the court.

The order requires Terrell Lowery to pay $500 per month child support for a five-month period that his son, who was identified only as M., spent in foster care in 2007 and 2008 after child welfare authorities and the juvenile court concluded that he had molested Lowery’s two daughters while living in Lowery’s home.

Support Order Made

Lowery and M.’s mother were never married, but Lowery admitted that he was the father following the child’s birth in 1993 and a support order for $475 per month was made.

In April 2005, the child went to live with Lowery. It was stipulated that Lowery owed no support at the time and that the mother was not required to pay support while the child was living with Lowery.

While living with his father, M. was charged with molesting his two stepsisters. He pled no contest in juvenile court and was placed in foster care.

The county, claiming foster care expenses of $5,000 per month, sought child support from Lowery under Welfare and Institutions Code Sec. 903(a), which requires a parent to support his or her child while in foster care. Lowery defended under Sec. 903(e), which provides:

“Notwithstanding subdivision (a), the father, mother, spouse, or other person liable for the support of a minor shall not be liable for the costs of support of that minor while the minor is temporarily placed or detained in any institution or other place...or is committed to any institution or other place pursuant to an order of the juvenile court, if the minor is placed or detained because he or she is found by a court to have committed a crime against that person.”

Lowery argued that the latter provision applied because the minor had committed “a felony against me in my home.” He contended that while his daughters were the direct victims of the minor’s crime, he was a derivative victim, because he had to bear the burden, financial and emotional, of the crime against his daughters.

Commissioner Dennis A. Umanzio disagreed, citing the plain language of the statute.

No Derivative Victims

Cantil-Sakuye, writing for the Court of Appeal, said the commissioner was correct. While a parent may be a derivative victim for purposes of the restitution statute, the justice explained, “[t]he Legislature did not include derivative victims in section 903(e).”

The jurist acknowledged the defendant’s argument that it was “bad public policy to take money away from his family that should be used for the benefit of the minor’s victims, rather than to benefit the victimizer.” But such policy judgments must be made by the Legislature, not the courts, she said.

The case is Yolo County Department of Child Support Services v. Lowery, 09 S.O.S. 5138.


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