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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.

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.

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.

When Should the Criminal Court Get Involved with Family Law?

Most family law cases make it from petition to marital settlement agreement without having to involve the police or a criminal prosecutor. However, there are cases when a partner is abusive, when the children are in danger, or when a partner makes false accusations that could have grave legal consequences. If you’re involved in such a case, when should you go to the prosecutor?

Family Court or Criminal Court

The biggest difference between family and criminal court is that the former is a civil court only. In other words, while it may have the power to referee and resolve disputes between different private parties, its power to punish criminal wrongdoing is extremely limited. The most available option is a sanction, or fine, for disrespectful behavior and potentially limited jail time for contempt of court. Successful contempt pleadings are rare though and sanctions don’t have an adverse effect if the party is extremely rich or extremely poor.

Criminal courts, on the other hand, are designed to find and punish criminal behavior. Police officers can take down statements and make arrests, prosecutors can initiate investigations, and defense lawyers can make constitutional arguments to protect against false accusations. In family court, it is common for parties make accusations and counter-accusations; in criminal court, the defendant will find that type of finger pointing to be unsuccessful.

by VicThe Right Time

So when is the right time to involve police, prosecutors, and criminal courts in a divorce or child custody matter?

In most circumstances, the right time is when the abuse begins. If a partner shoves you against a wall or throws an object at you, you should have the police make a report. If the situation is life-threatening, you should call 911. If you call 911, be sure to tell the dispatcher as much information as possible. These calls are always recorded by the police department, so even if the responding officer makes a mistake, the initial call will reveal any potential inconsistencies. If it’s not life-threatening, consult a family attorney about the best way to file a police report. If the abusive behavior continues, continue making police reports.

There are three important reasons to file a police report against an abuser. First, police reports are almost always admissible evidence in court, so there will be no problem getting the information in front of a judge. Second, in order to obtain a conviction for domestic violence or harassment (depending on your state and county), there usually has to be a pattern of abuse. Constantly making police reports establishes this pattern. Third, it prevents the abuser from filing the charges first. In many abuse cases, the abuser may attempt to accuse the victim first, so that the victim appears to be the abuser instead. Filing a police report first may prevent the abuser from muddying the situation too much.

If you have children and the abuser is your spouse, the dynamic changes. Many spouses are afraid to call the police on their spouse because they do not want their children to see the police arrest a parent of the children. If you believe your life or the life of your children is actually in danger though, seeing a parent arrested is preferable to seeing a parent being abused.

SCOTUS Allows Wisconsin Fetal Protection Law to Continue

The line between the rights of an unborn fetus and the rights of the woman pregnant with that fetus is one of the most contentious legal issues in modern society. While it generally comes up in the context of a women’s right to choose to have an abortion, the same battle is fought on other fronts as well. In Wisconsin, one such situation dealt with the state’s ability to step in and take physical custody of a pregnant woman-force her to stay in a secure medical facility or prison-where she uses alcohol or drugs while pregnant.

Just a few months back, a Wisconsin District Court ruled that a 1997 law giving the state this power was unconstitutionally vague. This led to the case being appealed to the Supreme Court of the United States. Last week, the Supreme Court issued an order removing the Wisconsin District Court’s stay on the law-at least until the Supreme Court rules on the “fetal protection” law one way or another.

At this point, there is no final say on what will happen to Wisconsin’s law. However, to get a better idea of what the future of this law means for you let’s look at the law itself, the facts behind this case, and the ruling of the district court from a few months ago.

fetal protection lawThe “Fetal Protection” Law and It’s History

Back in 1997, the Wisconsin Supreme Court made a ruling limiting the breadth of the Wisconsin Children’s Code-the code of laws allowing Wisconsin’s Department of Children and Families and other social services to take protective action in the interests of abused or neglected children. They determined that code did not give Wisconsin services jurisdiction over an adult pregnant woman just by reason that she is expecting.

But that same year they passed Wisconsin Act 292. The Act allowed juvenile courts and protective services to exert jurisdiction over an unborn fetus as if they were a child in need of protective services where the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. So, Wisconsin Services can hold pregnant women in custody if there is probable cause to believe she is within the jurisdiction granted by this act and there is reason to believe the mother is or has refused alcohol or drug services offered to her or isn’t making a good faith effort to participate in such services. The state can also appoint a guardian ad litem for the fetus-basically somebody who’s job is to advocate for the best interests of the unborn fetus.

On its face, this law seems innocuous. Abusing alcohol or drugs can have a serious effect on the health of a child when it is born. The ability of the state to step in and make women seek medical help in ceasing their alcohol or drug abuse could certainly prevent damage to a fetus that would ultimately affect the child for their entire life. However, but the Act was worded so vaguely that it opened the door for Wisconsin to potentially trample on women’s rights.

Ms. Tamara Loertcher’s Case

The case brought before the district court dealt with one Ms. Tamara Loertcher. She became pregnant in 2014 after long believing herself incapable of becoming pregnant. She was using methamphetamine and marijuana prior to becoming pregnant allegedly to self-medicate serious depression. Stating that she still did not believe she was truly pregnant, she went to the hospital three months later to confirm the results of her at-home test. The hospital’s tests revealed both pregnancy and drug use. She checked into a rehab clinic the same day.

Once at the rehab clinic, staff at the clinic reported Ms. Loertcher to child protective services for her drug use. This led to a case against her which culminated in her being unrepresented at regarding her being taken into custody. With no one there supporting her interests, she lost the hearing and was required to stay at a secure medical facility. She refused, was held in contempt, and thrown in jail with no medical services for 30 days. 18 days after being put in jail, she was released. She has since ceased all drug use and given birth to a completely healthy baby boy.

Ultimately, Ms. Loertscher stated that she felt that her worst mistake was going to the hospital in the first place. This is the fear of laws like Wisconsin’s, that they serve to deter the women who most need medical services from seeking help. However, this was not the reason the law was struck down.

The District Court’s Vagueness Ruling

In their ruling from the end of April of this year, it was the vagueness of the statute that led to the district court ruling it unconstitutional.  A statute is unconstitutionally vague where it doesn’t give the public fair notice as to the exact boundaries of the law. It’s only fair that the public know when they are and when they aren’t violating the law. To pass muster, a law needs to give at least some guidelines for how it is enforced. This act was subjected to a high level of vagueness scrutiny due to the constitutional rights implicated by the acts potential to lead to either physical restraint or forced medical care.

When looking at the text of the statute, the found that many of its terms failed to rise to this simple standard. The act applies where there is habitual lack of self control when it comes to drug or alcohol use. However, how much is habitual? Daily? Multiple times a week? Multiple times a month? Experts in the case couldn’t really nail down what was habitual use, never mind that habitual use is likely different depending on what is being used.

Similarly, the act applies to severe lack of self-control when it comes to drugs or alcohol but provides no line whatsoever as to what is severe. Further, due to wording of “habitual lack of self-control,” the act could be applied to any woman who once had an alcohol or drug habit-even if she no longer uses any substance-because habitual deals with both past and present behavior.

The court raised one more rather odd concern. How would the act deal with a pregnant woman who simply didn’t believe that using drugs or alcohol would affect her fetus? This wouldn’t be a case of lack of self-control but rather a matter of misinformation.

The list of overly vague terms and unclarified ambiguities in the act went on: risk is included but how much risk is “substantial?” When will a child be seriously affected by drug or alcohol use? Studies tend to agree that such behavior can affect a pregnancy but the amount necessary to harm a fetus varies from study to study. The experts in the case certainly couldn’t present a scientific consensus as to any of these questions. Thus, the district court ruled the act unconstitutional for vagueness and issued an injunction preventing application of the law-the injunction the Supreme Court just lifted.

fetal protection lawThe Future of the Act

The Supreme Court’s ruling only lets Wisconsin’s act continue functioning for now, it doesn’t necessarily mean that the Supreme Court will ultimately rule that the act is constitutional. It may tilt the odds in that direction. However, it is not the last nail in the coffin.

These sort of laws, allowing the government control over a pregnant woman because of her pregnancy, are certainly problematic. Abortion laws have long struggled in establishing the proper balance in the push and pull between a woman’s right to bodily autonomy and the rights of a developing fetus. Should a fetus be treated as having rights superseding that of the mother? When should a fetus be considered to have rights at all? With a law like Wisconsin’s, it seems like it allows the state to invade the rights of a pregnant woman almost immediately.

Drug and alcohol use during pregnancy is certainly not something to be encouraged. However, how far are we willing to allow the government to step on a woman’s rights to achieve this end? There is likely a middle ground here where the proper legal standard should be, however we continue to struggle to find the right way to deal with these issues. When the Supreme Court fully addresses this case, it will be the first time new appointee Justice Gorsuch will weigh in on such an issue since he joined the Court. We’ll have to wait and see what the Court’s eventual ruling will mean for Wisconsin’s law and women’s rights in general.