Lois Henry

Saturday, Apr 20 2013 10:30 PM

LOIS HENRY: 'Best interests of the child?' Not from this court.

By Lois Henry

I really don't know what to make of a recent opinion that came down from the 5th District Court of Appeal on a local child neglect case.

The justices seem to be saying -- actually they say it straight out -- that bureaucratic process trumps the best interests of the child.

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In this case, the child's mom couldn't get her act together through more than one round of "reunification services," such as counseling and parenting classes. But the child's dad was more than willing to take over the 7-year-old's care.

I thought the Department of Human Services (DHS) and Kern County Juvenile Court did the right thing (yes, I said it) when they gave dad custody last July.

But the 5th District reversed the Kern court in a recent unpublished opinion. One reason given was that the mom was still going through more reunification services. Meaning she was still eligible to get her daughter back.

"We cannot ignore the fact...that the child's need for stability is not the only, or even the paramount, consideration," the justices wrote.

What?

I thought the child's need for stability was the WHOLE POINT of child protective services.

Otherwise, why not pack up the kit 'n kaboodle and be done with it? Lay off all the social workers and lawyers and investigators and counselors. Let kids fend for themselves "Lord of the Flies" style.

OK, before I get too far off the rails railing at the 5th District, I have to acknowledge there is some validity to the 5th's ruling. Not much, though.

Parenting is a fundamental, constitutionally protected right, I was reminded by attorneys who work in juvenile dependency but didn't work on this case.

The state has a heavy burden to prove that tie should be severed.

Understood.

And I agree that if "best interest" were the only test for removing a child, we could, conceivably, get into a social engineering nightmare where children are taken from poor or homeless parents.

Parental rights must be respected.

That said, my lawyer friends and I agreed, the court still made the wrong ruling on this particular case.

The facts:

Mom had two daughters, now 3 and 7, by two dads, one in Bakersfield and one in Texas.

In September 2011, the girls were taken into protective custody because mom left them with Bakersfield dad's girlfriend who said "voices in her head told her to stab everyone," according to court records.

Mom, apparently, had been ordered by a court months earlier to keep the children away from the girlfriend, but admitted to social workers she continued to expose them to the girlfriend, who suffers from mental illness and substance abuse.

With the girls in foster care, mom was told to take classes and counseling.

In January 2012, the court found she had not made progress and ordered her into more classes and counseling.

Meanwhile, the oldest daughter's father surfaced in Texas. Mom had told social workers he was dead.

He was very much alive and very interested in establishing a relationship with his daughter. He was allowed visitation after the court reviewed a paternity test and declared him the biological father.

That's important because there are four categories of fathers, de facto, alleged, biological and presumed. Presumed has the most rights.

Visits between dad and daughter went so well, he decided to seek custody.

Mom continued to fail at reunification (even smacking the 3-year-old in the mouth during a supervised visit, according to court records). DHS, after checking out dad's place in Texas, recommended custody be granted to dad.

Everyone walked away happy, except mom who filed an appeal, which is how the 5th District justices got involved.

They "reluctantly" overturned the custody award for two reasons.

First, the Kern court never declared dad the "presumed" father, which would have entitled him to have the daughter placed with him. (Though there's no rule excluding biological fathers from gaining placement.)

Second, mom was still in reunification status so her parental rights were still in play, justices wrote.

OK, I get that technicalities aren't always minor and rules are rules for reasons.

But in this case, I think the 5th is missing the forest for the technicalities.

Besides, other courts have ruled in published opinions, which have more weight, that courts have broad discretion to determine what would best protect a child and to fashion a ruling in keeping with that discretion.

If this seems confusing and contradictory, it's because it is. My lawyer pals shrugged it off as SOP.

They opted to look at the 5th's opinion as educational, more a reminder of what our appellate court expects of Kern Courts.

Meanwhile, dad, whose had his daughter for the past year, will petition to be named the presumed father and be granted custody again.

More rigamarole for the exact same result.

By the way (and this is another story), all of these hearings, the appeal, the lawyers, the research, filing fees, etc. -- all paid for by the taxpayers.

Well, that makes me feel so much better.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com Lois Henry hosts "First Look with Scott Cox" every Wednesday on KERN 1180 AM from 9 to 10 a.m. The show is also broadcast live on www.bakersfield.com. You can get your two cents in by calling 842-KERN.

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