Metropolitan News-Enterprise


Friday, November 25, 2011


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C.A. Reverses Order Stripping Rights of Kidnapped Child’s Mother

Parent’s Due Process Guarantee Trampled in ‘Nightmare’ Scenario, Justices Say


By a MetNews Staff Writer


A Tehama Superior Court judge violated the due process rights of a mother, who found her child after he had been kidnapped in infancy by his father, by forcing her to bear the burden of proving her fitness, the Third District Court of Appeal has ruled.

The justices Wednesday certified for publication their Oct. 25 opinion in the case, in which they reversed Judge Richard Schueler’s order terminating the parental rights of the mother, identified only as L.K.

“In many ways, this case represents a mother’s worst nightmare come horrifyingly to life,” Justice Ronald Robie wrote. While the mother actively sought custody, and had a constitutional right to it in the absence of clear and convincing evidence of detriment to the child, “nobody in Tehama County—not the [Department of Social Services], not mother’s court-appointed attorney, and not the court—recognized or acknowledged this right,” the justice explained.

Child Missing

The evidence before the juvenile court was that the child, identified as Z.K., was born in July 2004. The parents were living with L.K.’s mother-in-law in Las Vegas until she and her son forced L.K. to leave, when the child was three months old.

When the mother came to the house for a visit, she discovered that her husband, child, and mother-in-law were gone. The mother, who was homeless, continued to look for them for several months before returning to Ohio, where her family lived, although she and her mother continued trying to learn the child’s whereabouts.

L.K. did not know that her husband had taken the child to California, until late 2009, when her mother discovered on the Internet that the child had been found and his father arrested in Red Bluff more than 18 months earlier.

That arrest was for possession of methamphetamine, and came after the child was found wandering, unsupervised, near a busy roadway. The father asked that the child be placed with the father’s mother, and claimed that L.K. was in a mental institution, did not want anything to do with the child, and had abandoned the then-infant.

The department declined to place the child with his paternal grandmother after she admitted having recently smoked methamphetamine herself. It filed a dependency petition, alleging that the father had failed to protect the child.

Hearing Delays

The department later informed the court that it had searched unsuccessfully for the child’s mother, and the child remained in foster care. After reunification efforts failed—the father was arrested several times on new drug charges, became involved with another woman, and stopped visiting Z.K.—the court set the case for a permanent placement hearing.

That hearing was originally scheduled for the fall of 2009, but was delayed so that the department, which originally attempted to serve notice on the mother by publication in Las Vegas, could do so in Ohio.

 After learning of the Internet report, and contacting the department, the mother explained that she was attending college in order to qualify for work as a medical administrative assistant. The court was notified and appointed counsel for her.

The department recommended that parental rights be terminated as to both the mother and father, and that the child be freed for adoption by his foster mother. The mother responded with an email, explaining that she “desperately want[ed] to be back in [the child’s] life” and stated that she had recently begun taking parenting classes to help her understand how to raise the child, who had been diagnosed as mildly retarded.

The court delayed the hearing until last June, so that authorities in Ohio could conduct a home study. The study suggested that placement with the mother would be detrimental to the child, citing the mother’s limited income; the possibility that the mother’s boyfriend was living in her tiny apartment, leaving little space for the child; and the hazardous condition of the outside stairs leading to the apartment.

The hearing was further delayed for a second home study and a psychological evaluation, and was finally held in January of this year. The mother’s attorney requested a further delay in the hearing, so that she could attend, but the judge denied it on the ground that counsel for the child and the foster mother had both objected and that the mother had not cooperated with the Ohio social workers in connection with the second home study and the psychological evaluation.

The local caseworker testified that the mother’s visit with the child in March 2010 had been “successful” and acknowledged that the Ohio authorities had not made a home visit that would have been necessary to the completion of the second home study.

Justice’s Reasoning

The judge found that the child was likely to be adopted and terminated parental rights, but Robie said the decision was erroneous because the burden should have been placed on the department to prove that not terminating the mother’s rights would be detrimental to the child, the judge made no finding to that effect, and that such a finding could not be implied from the evidence in the record.

“[W]e agree with mother that by terminating her parental rights without finding it would be detrimental to the minor to be placed in her custody, the juvenile court violated mother’s constitutional right to due process of law, which is rooted in her fundamental interest in the care, companionship, and custody of her child,” the justice wrote.

A finding of detriment to the child cannot be implied from the mother’s alleged lack of cooperation with the Ohio authorities, Robie said. Given the burden of proof, “any lack of information here has to be held against the department, not against mother.” Nor, he said, can unfitness be inferred from the lack of a psychological assessment, he said, since the department admitted there was no evidence the mother suffered from a mental illness adversely affecting her ability to parent the child.

On remand, the justice explained, the juvenile court must return the child to the mother’s custody but has discretion as to whether it will retain or terminate dependency jurisdiction. But because Scheuler ignored “clear case law” favoring the mother’s position, Robie concluded, reassignment of the case is required.

The jurist also recommended that new counsel be appointed for the mother, in the event the new judge elects to retain jurisdiction.

The case is In re Z.K., C067441                                                                                    


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