Thank goodness Justice McDonald elected to publish this opinion, albeit belatedly. Because I think that the decision of the lower court -- down here in San Diego -- was absolutely outrageous. Or at least that's my very definite impression.
Here's the deal. Mom and Dad are drinking. As parents sometimes do. Not a ton, but a bit. They go to the store to buy some diapers, milk, and beer. The latter for themselves, the former for their 19-month old twin girls, Sierra and Savannah. They don't abandon the kids. Rather, they leave them with a family friend, David, who is 60 years old, who's raised seven kids of his own, and who they've known for two years. Seems fine.
They come back from the store and see that David's changing Savannah's diaper. Which is strange because they had just changed her diaper, and David had also previously said that he didn't like changing diapers. So that's a bit weird. But rather than just overlook the matter, or simply assume that everything's okay, they confront the dude, and ask David straight out whether he's doing anything wrong, and he replies that he's totally not, and who swears that he'd never do anything like that. As a result, Mom's still a bit worried about David's trustworthiness, but Dad's not: he's convinced that David really was just changing a diaper.
Consistent with Dad's impression, later that evening, Dad and Mom again leave the kids with David while they go to the store, this time for cigarettes. They're only gone for 20 or 30 minutes. But this time, when they come back, David's indisputably molesting Savannah, telling her to "Suck this". At which point they -- not surprisingly -- totally freak. And, of course, call the cops, who arrest David.
So what happens at this point? Is this a case about David's conviction? Nope. Justice McDonald doesn't tell us what happens to him. What he does tell us, however, is that based upon their call, the police immediately take Savannah and Sierra from their parents. That their kids are then raised in foster care for two months, which is how long it takes Social Services to conduct their investigation. And then, at the trial, Judge Neely decides to declare the kids wards of the state based exclusively on the conduct with David described above.
Let me be crystal clear. Everything in the social services report about the parents is exactly what you'd expect to see from a normal, loving family. Stable home. Dad loves the kids. Mom loves the kids. Precisely the same stuff you'd presumably read if Social Services investigated your family. But Social Services still files to keep the kids in foster care. And Judge Neely lets 'em. Based entirely on the conduct of Mom and Dad with respect to David that night.
Absurd. And Justice McDonald explains exactly why. They didn't know that David was a molester. They don't have ESP. You don't get your kids taken away from you just because someone else molests your kids. (Like a contrary rule would be good for anyone, including the kids.) When they did know that he was a child molester, they did precisely what we'd want anyone to do. Call the cops.
If I have any problem with Justice McDonald's opinion, it's that it's not strong enough. It's an outrage to take a parent's children away -- for any amount of time, much less potentially permanently -- based upon the type of conduct that transpired here. Maybe what happened with Mom and Dad here couldn't exactly happen to any of us. But assuredly something like it could. If the type of erroneous judgment displayed here counts as child abuse sufficient to have your kids taken away, then no one's kids are safe. Nor is any family.
P.S. - This may be another case that randomly hits close to home for me, if only because it not only transpired in San Diego, but because one of the kids taken away is -- like my own daughter -- named "Sierra". Also, I tried to find out more about "Judge Neely". The only reference that I could find was something listing him as a pro tem referee in Department 10 of the Juvenile Dependency Division. So doesn't look like an actual judge. Turns out also that he's an old-time USD Law graduate (1964?). Who's currently inactive with the State Bar. Which sort of makes me glad. Look, I'm all in favor of judges who are looking out for kids. I totally am. But there's also going way, way too far. Which is my definite sense of what happened here. You can't take kids away from their parents -- or vice-versa -- for stuff like this. You just can't.
