Monday, September 27, 2010
C.A. Upholds Removal of Sons Over Father’s Failure to Use Car Seat
Boys Whose Sister Died in Auto Accident Found to Be in Danger
By SHERRI M. OKAMOTO, Staff Writer
A father has lost custody of his two sons after his daughter was killed in a car accident while riding in the lap of a relative as he rushed her to the hospital seeking care for her injured arm.
The Court of Appeal for this district on Friday concluded that the failure of the father, identified in the decision as William C., to secure 18-month old Valerie in a car seat was a sufficient basis to uphold the removal of her two older brothers, Ethan and Jesus.
Div. One ruled that an assertion of jurisdiction pursuant to Welfare and Institutions Code Sec. 300(f)—which applies if a “parent or guardian caused the death of another child through abuse or neglect”—did not require a finding of criminal misconduct or a current risk of harm to William’s sons.
The panel also said the evidence of prior domestic violence by the mother, referred to as Kimberly G., supported the trial court’s finding that Ethan and Jesus were at risk of harm if they remained under their father’s care, even though he had separated from their mother.
William C. and the children lived with numerous members of the father’s extended family in his mother’s home after the separation. On June 19, 2009, the father left Valerie in care of relatives, but she was left unsupervised, fell out of bed, and hurt herself.
When he discovered the injury, the father’s car, which had a car seat for Valerie, was being used by someone else, so he borrowed another vehicle which did not have any child safety restraint for his daughter.
On the way to the hospital, the car was struck by another vehicle whose driver had run through a stop sign. The car spun and hit two others, and Valerie was thrown from the vehicle. The coroner concluded she had died as a result of blunt force injury to her head.
About a week after Valerie’s death, the Los Angeles County Department of Children and Family Services received a referral involving her brothers. The agency discovered that Ethan and Jesus were living in unsanitary conditions with over 20 relatives in a house that lacked proper utility services.
Investigators also learned that the mother—who had been diagnosed with borderline personality disorder and generally functioned at a level no greater than a 13- year-old—had physically and verbally abused the father in the past.
The agency detained the Ethan and Jesus and enrolled the family in a voluntary reunification plan, but later determined the children could not safely be returned to the father’s care within the time parameters provided by the plan.
A Sec. 300 petition was then filed alleging that Ethan and Jesus were at substantial risk of suffering serious harm due to their mother’s inability to care for them and her history of domestic violence. The petition also asserted that Valerie’s death, attributed to her father’s decision to drive while she was unsecured, put the boys in danger.
The father. contested this last allegation, contending his failure to strap Valerie into a car seat did not amount to “criminal negligence,” which he insisted was necessary to meet the requirements of Sec. 300(f).
Los Angeles Superior Court Referee Sherri Sobel disagreed, finding by a preponderance of the evidence that Ethan and Jesus were dependents of the juvenile court within the meaning of Sec. 300, subdivisions (b), (f) and (j).
Writing for the appellate court, Justice Jeffrey W. Johnson explained that Sobel had properly sustained the allegations premised on the father’s failure to secure Valerie in a car seat.
“Had the legislature intended section 300, subdivision (f) to be predicated on criminal negligence, we believe it would have expressly said so,” the jurist said, noting the statute was revised in 1996 to eliminate the requirement of a criminal conviction.
Johnson further reasoned that Sec. 300(f) did not require a finding of current risk to Ethan and Jesus since the Legislature omitted mention of such a requirement.
He added that the history of domestic violence by Kimberly also formed a sufficient basis for jurisdiction under Sec. 300(b), citing In re Heather A. (1996) 52 Cal.App.4th 183 for the proposition that “domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.”
Presiding Justice Robert M. Mallano concurred, but dissenting Justice Frances Rothschild contended that a requirement for a current risk of harm was contained in Sec. 300.2, which provides “[n]otwithstanding any other provision of law, the purpose of the provisions of this chapter…is to provide maximum safety and protection for children who are currently being…abused [or] being neglected…and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm.”
Requiring a showing of a current risk of harm creates a “safety net” to avoid removal in situations where the conduct leading to the death of one child did not pose a risk to others, such as The father’s “single lapse in judgment with respect to Valerie,” Rothschild opined.
She further insisted the dictum cited by Johnson from in In re Heather A. was not persuasive, and even if exposure of children to domestic violence could establish jurisdiction under Sec. 300(b), there was no evidence Ethan and Jesus had seen their parents fight or that there had been any altercations since the parents’ separated, and therefore there was no basis for asserting jurisdiction over the boys.
The case is n re Ethan C., 10 S.O.S. 5555.
Copyright 2010, Metropolitan News Company