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CA Supreme Court: Parents Can Lose Custody of Children Even If There is No Fault

What does it take to lose custody of your child to the state? Usually it is very difficult, as most states don’t want the burden of having to raise a child. However, that hasn’t stopped the California Supreme Court from removing a major factor in the transfer of parental custody to the juvenile courts. The astounding point about that case though is that was unnecessary to do so.

When R.T. was 14, she began running away from home and ditching school. She gave birth to a daughter next year and then had another child the next year. Both of R.T.’s children are wards of the state. R.T.’s mother has tried to supervise and protect R.T. with Los Angeles County Department of Children and Family Services (DCFS), but to no avail. R.T. had accused her mother of abusing her, though the accusations were considered false. Mother later arranged for R.T. to leave with her maternal grandfather. This was difficult for both parties as R.T. allegedly threw a chair at him.

In February 2014, DCFS asked the juvenile court to declare then 17 year old R.T. a dependent of the court. DCFS argued that there was a “substantial risk of serious physical harm or illness, as a result of the failure or inability of mother to adequately supervise or protecther.” The juvenile court agreed, because “the mother cannot control R.T. so she has given her off to grandparents and they can‘t control her either.” The mother appealed, but the ruling was sustained by both the appeals court and the state Supreme Court.

custodyEasily the most controversial issue of this case is that the California Supreme Court removed causation from the child dependency statute. In English, California has a series of laws that allows courts to remove custody from parents and give it to the state. One of those laws, section 300(b)(1),allows the state to assume custody of a child if there is “a risk or substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.” The second half of that law, “as a result of failure or inability of his or her parent,” is normally a conditional clause.

That is, if a parent fails to supervise or protect the child and if there would be a substantial risk of harm to the child, then the state may assume custody of the child. It is important to understand the law this way because there are two events that must happen before the state can take a child away. First, the parent must fail to supervise or protect the child. Second, there must be substantial risk of harm to the child.

Linguistics Is the Cause of Mental Gymnastics  

This case is largely about whether the two factors must be connected. Must the parent’s failure to supervise cause substantial risk to the child or could they each arise independently? All evidence in the lower courts indicates that the mother did her best to supervise R.T. If anything, it was R.T.’s own behavior that lead to her being a teenage single mother of two. “The record also supports a theory suggesting that R.T.‘s disobedience was the reason mother was unable to protect or supervise R.T.” Indeed, the Court goes so far as to say that “we in no way pass judgment on mother‘s inability to control R.T.‘s incorrigible behavior.” If the law was read so that parental failure causes risk to the child, then the mother should win this case.

Instead, the state Supreme Court concluded that the legislature never intended causation as a factor when it wrote the law. The Court dove through the legislative history and compared the child dependency law to a similar law dealing with sex trafficking (section 300 (b) (2)). The problem with this analysis is that runaway children and sexual slavery are two different and distinct problems. There might be some overlap, but a teenager who refuses to live with her family is a different problem than a child who is kidnapped and sold. Just because causation is missing from the custody law dealing with sex trafficking does not mean that the legislature intended to remove causation from both.

We Know the Problem, So What’s the Solution?

The problem with reading legislative intent is that if the legislature actually intended the law to mean something, they would have simply written that into the law. In this case, the Court’s ruling directly contradicts the written law itself! The phrase “as a result” means that the first event is caused by the second event. If I say “I broke my leg as a result of falling down stairs”, I mean that my leg broke because of the fall. It makes no sense to assume that “as a result” means that “I broke my leg and fell down stairs, but the stairs had nothing to do with my leg.”

Freed from the burden of having to show that parental responsibility is a cause of harm to children, state services are now free to remove child custody if a parent is failing to “adequately” parent a child and if the child is perceived to be in danger. Although this case will not have much effect on a woman who was 17 and a half when the case was initially brought, it will matter to future parents. A father who is wheelchair bound whose toddler plays in a building with secondhand smoke from other tenants could potentially lose custody. Or a single mother who works two jobs late at night is often absent from home while her son experiments with drugs. Although the California Supreme Court probably didn’t intend for these possible cases, they will surely arise in the future.

Civil Asset Forfeiture Must be Done by the Book

Americans on both sides of the political aisle have worked to limit the usage of civil asset forfeiture.  For those who don’t watch John Oliver or read the Federalist, civil asset forfeiture is the legal process where police can seize assets suspected of aiding criminals. Law enforcement have seized assets even when there is no criminal conviction and those assets are given to the agency that seized the property. The agencies use the money for both legitimate and illegitimate reasons, such as bulletproof vests and slush machines.

Liberal and Conservative groups alike have worked hard to limit the abuse of asset forfeitures, the cabinet appointment of Jefferson Beauregard Sessions III notwithstanding. Most Federal asset forfeitures now require a conviction before property can be seized. However, a new case before the Supreme Court threatens to undo what little progress has been made towards asset forfeiture. This time though, the threat comes from the courts rather than an overzealous Attorney General.

In 2014, Henry Lo was indicted for wire fraud, mail fraud, device access fraud, and embezzlement of funds from a former employer and former girlfriend. The indictment included a potential asset forfeiture of Lo’s residence and six bank accounts if convicted. Lo plead guilty to wire and mail fraud, including a scheme where he enriched himself by $1,700,000. However, prosecutors neglected to include any mention of asset forfeiture in its plea agreement and the judge did not make any mention of it at the sentencing hearing. The government only asserted forfeiture when the U.S. Probation Office requested $2,244,384.39 in forfeiture. Instead of tracing the stolen property, as required by statute, the government only asserted that property seizure was “appropriate.”

civil asset forfeitureOn April 9, 2015, Mr. Lo was sentenced to a term of 70 months imprisonment, three years of supervised release, and restitution for $2,232,894.39. On appeal, the government conceded that federal law does “not expressly authorize personal money judgments as a form of forfeiture,” but that “nothing suggests that money judgments are forbidden.” Nevertheless, the Ninth Circuit affirmed the ruling, finding that since civil forfeiture furthers the cause of combating illegal drug trade, it was appropriate to seize the defendant’s money.

Civil Asset Forfeiture Should Only Be Used In a Manner Prescribed by Congress

 To summarize everything above, the defense is arguing that Congress only permits asset forfeiture in wire and mail fraud cases when the prosecution can trace the property or funds back to the crime. Any deviation by the judiciary from this procedure is a violation of the separate of powers, as judges have no power to create criminal punishments.

The legal requirement that the prosecution trace the property back to the crime is an important procedure. If the prosecutor cannot show how a property was used to commit a crime or how a defendant benefited from the crime, then law enforcement would not be seizing the property; they would be stealing the property. In this case, Lo plead guilty to gaining $1,700,000 by fraud. That money does not belong to him and the government has a right to reverse all of Lo’s gains. If Lo used the money to purchase a house in Florida, then the government has the right to seize that house. However, the prosecution must prove that Lo actually used a portion of the illegally obtained money to purchase the home in Florida. If Lo would have owned the house regardless of whether he committed the crime, then the government has no right to the house.

Civil liberty groups have largely succeeded in reforming forfeiture so that the defendant actually has to be guilty for his property to be taken. However, it is still not legal or morally right to take property from a convicted criminal merely because he owns the property. Without the tracing requirement, police could take property unrelated to the crime. They could also take any property from the defendant without limit. Just because a criminal defendant steals from a victim does not give the government to steal from the defendant.

The Importance of Judicial Restraint to Liberal Values

So far, I’ve only talked about the Lo case in relation to asset forfeiture. However, this case should show liberal voters and politicians the importance of judicial restraint. The defense for Lo is a textbook of judicial conservative talking points, with emphasis on separation of powers and the limited role of federal judges.

However, these talking points are now being used in service of important civil liberties, such as the limitation of asset forfeiture. Although limiting forfeiture is a bipartisan goal, liberals should realize that stopping judicial activism might be more beneficial in the near future. With a political conservative majority on the Supreme Court and with Mr. Trump appointing more political conservatives to the federal bench, liberals might not be able to rely on the third branch as they have in the past.

With America and its parties slowly realigning itself, liberals should be prepared to argue that the courts should be restrained and checked. If the federal government is dominated by Attorney Generals and judges who want to expand the executive branch’s power, then the only way to protect the civil liberties of Americans will be to adopt former conservative arguments regarding judicial activism. Strict adherence to the constitution, including the limitation of all three branches of the federal government, will be the best line of defense against entrenched conservatives like Jeff Sessions. With the political atmosphere as it is today, a strict reading of the constitution may be the only defense the nation has against the destruction of civil liberties.

How to Ask a Judge for Alimony

One of the most common questions when spouses file for divorce is: “do I get spousal support?” or “do I have to pay spousal support?” In California, at least, this is not always an easy question to answer. California employs a factor balancing test: judges consider a laundry list of different factors and then carefully weigh whether granting spousal support would be fairer than not granting spousal support.

alimonyWhat Factors Determine Alimony?

Although the list of alimony factors is miles long, they generally emphasize two different values: equality and self-sufficiency. Since marriage today is viewed as a partnership, courts want to make sure that each party is walking away with half of what the partnership created. Traditionally, the partnerships worked by having husbands serve as breadwinners while wives maintained the homestead. That’s not as common today, but the idea remains the same: the partner that takes care of the home is entitled to his or her contributions to the partnership, even if the contributions were not paid by a third party.

California expects that after a married couple separates, both parties will eventually become self-sufficient, independent of one another and able to survive without the other. If the marriage ends, then logically the partnership should also end. Ordering one spouse to financially support the other spouse undermines self-sufficiency, but that’s why self-sufficiency is a limiting factor when a judge considers alimony.

How Does the Judge Weigh the Factors?

So how would a judge go about reconciling these two competing values? Admittedly, some judges will prioritize one value over the other. One judge might think it’s more important that the spouses each receive an equal share of the assets; another judge might think that it’s time for them to go about their own separate ways. However, this is usually difficult to determine without a large sample size, because setting alimony is determined on a case by case basis. That is, family law judges are to look at the facts of each case and then decide whether which factors are more important. They cannot ignore factors, as they are mandatory, but they look at a case and decide one factor is more appropriate than another.

For instance, length of marriage is often an important factor. If the marriage is a short term marriage (less than 10 years), a judge is much more likely to believe that the spouses should be self-sufficient sooner. After all, the couple probably hasn’t created a lot of wealth together, they’re probably both young enough that they can independently find and hold a job, and since they weren’t married that long, they probably haven’t become as dependent on each other as an older marriage. On the other hand, a couple that splits after 30 years together has probably accumulated a lot of money and debt together and chances are that one spouse has become financially dependent on the other. In a long term marriage (10 years or more), judges would probably place more emphasis on equality, making sure that each spouse gets out what he or she put in.

Since California largely leaves alimony in the hands of judges, it is often best to settle a case. Although laws are meant to provide clear guidance, factor balancing tests are anything but clear. Settlement is often preferred because clients will have the most control over the outcome; a judge with a factor balancing test can be unpredictable.

Can the Police Enter a Driveway to Search a Vehicle Parked a Few Feet from Home?

Officers McCall and Rhodes of the Albemarle County Police Department were looking for a motorcycle driver who had escaped them on two separate incidents. The officers pursued the motorcycle driver because he had been going 140 mph in a 55 mile zone. The officers couldn’t continue chasing the motorcycle for safety reasons, so they used the on-board police cams to snap a picture of the license plate. Subsequent investigation indicated that the motorcycle itself was likely stolen property and that Collins had purchased the motorcycle knowing it was likely stolen.

The officers found the suspect, Ryan Collins, at a local Virginia DMV.  While Officer McCall questioned Collins, Officer Rhodes searched Collin’s public Facebook profile. The search revealed a picture of a motorcycle, covered by a tarp, parked at the home of Colling’s girlfriend.After leaving the DMV, Officer Rhodesfound the house in the Facebook photograph. Since Collin often stayed at the house with his girlfriend and daughter several days a week, the lower courts considered this house to be Collin’s residence.

Officer Rhodes walked up the driveway. The driveway was enclosed on three sides: the home on one side, a brick retaining wall on the opposite side, and a brick wall in the back. Rather than knock on the door and announce himself, he searched the driveway. The motorcycle Officer Rhodes was looking for was covered in a white tarp rested hidden behind a dark tinted car. The motorcycle and car were both inside a curtilage adjacent to the house. The motorcycle laid on the side of the house. He lifted up the tarp and discovered that the motorcycle had the same license plate as the one he saw earlier and the one that was reported stolen. After confronting Collins with the evidence, Officer Rhodes arrested him.

Collins was subsequently convicted of receiving stolen property. The Virginia Appeals Court and State Supreme Court affirmed the conviction. Collins appealed to the U.S. Supreme Court, arguing that Officer Rhodes’s search of the motorcycle on his driveway without a warrant was unconstitutional. The Court has yet to make a decision as to whether they will hear the case.

policeOfficer Rhodes Should Not Have Searched the Motorcycle

The entire issue in this case is whether a police officer can search a vehicle in a driveway. The Fifth Circuit has generally held that officers may not. The rest of the country, like the State of Virginia, has not limited police searches as much.

Americans are generally protected by the 4th Amendment’s prohibition against unreasonable search and seizures. To search a house, officers must have a warrant. This protection extends to objects adjacent to the house, such as trash cans. Police officers cannot walk through a person’s house or rifle through their trash unless invited or if there is an extreme emergency, such as a hot pursuit of a fugitive who bursts into a house.

However, automobiles can be exempted from such protection. If a car is readily mobile and the officer has probable cause to believe it contains contraband, an officer may search the vehicle, even if the vehicle itself is not in motion. Collins’s case presents an interesting dilemma, as the motorcycle was adjacent to the home, though not inside it. Certainty if the motorcycle were inside the garage, Officer Rhodeswould not have been permitted to go inside and remove the tarp, even if the garage door was open (but if the motorcycle was not covered by the tarp and inside the garage, Rhodes could have snapped a picture from the sidewalk).

Instead, the motorcycle was outside the structure of the dwelling and partly concealed. The prosecution would argue that the purpose of the tarp was to conceal what was otherwise observable evidence from the public sidewalk. However, the prosecution needn’t go that far; the picture was on Facebook, so Collins wasn’t intending to hide evidence. However, the tarp and the car were blocking the public view of the motorcycle underneath. Collins had a reasonable expectation of privacy when he parked the motorcycle in the driveway and it was a violation of his rights for Rhodes to lurk around his property without a warrant.

Of course, the prosecution would argue that it was necessary for Rhodes to search the driveway because Rhodes had probably cause to believe that Collins was hiding contraband (he had received stolen property) and that there was a risk that Collins would move the contraband since it was inside a vehicle could easily leave the premises.

So, What Does This Mean?

However, the dissenting opinion in the Virginia Appeals Court makes a notable distinction: that the vehicle in this case is the contraband. The automobile exception exists to ensure that suspects do not further conceal evidence after officers have located the evidence. It is unlikely that Collins would have driven off with his motorcycle to conceal it. He posted pictures of it on Facebook and it wasn’t well hidden as it was on the driveway itself.

Since the motorcycle itself was the illegal property, Rhodes and his Department could have chosen to stake out the property and wait for Collins to move the motorcycle himself.  At the time of his arrest, Collins was dressed in protective motorcycle gear and had the key on his person. The officers could have arrested him as he was about to leave rather than make a potentially illegal search of the property.

Parents: How High Does Your IQ Need to Be To Raise Your Children?

Amy Fabbriniand Eric Ziegler lost custody of their two sons, Christopher and Hunter, shortly after they were born. Oregon’s Department of Human Services (DHS) allegedly removed both boys because their parents had low IQ test scores.The children are in foster care, but Fabbrini and Ziegler have supervised visitation.

According to documents filed by DHS, Fabbrini tested IQ was at 72, placing her in the “extremely low to borderline range of intelligence,” and Ziegler’s about 66, placing him in the “mild range of intellectual disability.” The average IQ is between 90 and 110. Neither of them are currently employed, but thanks to Ziegler’s parents, they have steady housing. The couple each have high school diplomas and Fabbrini has had shared custody of twin boys with her ex-husband.

Interestingly, DHS has not any reported instances of abuse by the couple towards any of their children. Instead, DHS’s child welfare records attempt to show that Ziegler is negligent: “Ziegler has been sleeping with the baby on the floor and almost rolled over on him. There were also reports that Eric is easily frustrated and often forgets to feed his dog.” Ziegler claims his dog is actually well-fed and that he was simply lying next to Hunter while feeding his son.  Nevertheless, DHS has placed the children in foster care because DHS believes Fabbrini and Ziegler have “limited cognitive abilities that interfere with (their) ability to safely parent the child.”

parentsDiscrimination vs. Safety

The idea that the state can remove custody from parents merely because the parents have a low IQ should be repugnant to most people. Exactly who determines whether one’s IQ is high enough? How would such a test even measure intelligence? And why are “smart” people more qualified to raise someone else’s child? State Service Departments should have more guidance in cases like these so that they don’t become draconian. Fortunately, there enough guidelines that State Services should know better than to treat mentally disabled individuals like this.

As with any child custody case, the best interests of the children always come first. If the children are threatened or neglected, DHS should step in. However, there’s no real record that’s the case here. The only allegations are that the father doesn’t always feed the dog and that he almost slept on the baby once. Most case law features far more serious allegations and crimes than the two instances described – physical abuse, sexual assault, drunk driving, etc. Most courts would be very happy if the worse thing a parent did was sleep next to their infant son.

At the same time, we don’t want to discriminate anyone just because they’re different than “normal” parents. Disabled Americans have often faced discrimination, but we have gone further to ensure that disabled individuals are included in society. If a disabled person seeks employment or wants to continue employment, we have required businesses to accommodate their disability, sometimes even at a loss to the employer. Granted, child custody is different, since the disabled individual would be taking care of a helpless human being instead of working to provide for him or herself. Raising a son or daughter is certainly a bigger obligation than taking care of one’s self. But if we really want disabled Americans to be included in society, disabled Americans should have a chance to raise a family of their own. We can’t cut off disabled Americans from the most fundamental aspect of our culture and then pretend to be inclusive.

However, removing child custody just because of a disability would not only violate the rights of the parent, but it might also harm the children. It might bother a child to have a father in a wheelchair all the time, but not having a biological parent even though the parent is alive and willing to take care of the child might be worse. Many states have passed laws requiring a connection between a parent’s disability and parental misconduct. In other words, it’s not enough the parent might have a disability, but that the disability is somehow preventing the parent from taking care of the child. Physical or mental disability alone should not be the sole deciding factor in removing custody of a child.

Oregon State Senator Tim Knopp has introduced a bill that would codify this ideal into Oregon law, but the bill has not made any progress in Salem. If this case concerns you and you live in Oregon, consider contacting your state representative and ask him or her to support Senator Knopp’s bill.