Listen to these facts from an opinion (and child's death) down here in San Diego:
"Jorgelina lived with her boyfriend, Enrique, their baby daughter, Stephanie, then age 10 months, and her son Jorge, then age 6 years. The household also included Jorgelina's sister, Alma V., and Alma's daughter, Dayanara, a 22-month old toddler. On the afternoon of December 14, 2005, Alma was home with Dayanara; Jorgelina was away from the home at work. At approximately 3:45 p.m., Alma left the home on an errand,
leaving Dayanara with Enrique, Jorge, and Stephanie. At 4:09 p.m. Enrique telephoned Alma on her cellular telephone and told her Dayanara had fallen off a bed and was hurt. Alma immediately returned home and found Dayanara limp and unresponsive. Alma and Enrique took her to the hospital.
When they arrived at Children's Hospital, Dayanara was in cardiac arrest. Doctors placed her on life support and determined she was suffering from a skull fracture, severe brain trauma, a ruptured pancreas, and extensive internal bleeding. She had a number of bruises on her body. On December 15, 2005, after a neurosurgical evaluation confirmed there was no hope for recovery, medical personnel removed life support systems and Dayanara died.
The medical examiner listed Dayanara's death as homicide caused by blunt force trauma to her head and abdomen. Police arrested Enrique and charged him with first degree murder, assault on a child causing great bodily injury and felony child abuse. Enrique denied hitting Dayanara but admitted she was injured while in his care. He said he disciplined the three children by placing hot chili peppers into their mouths and did the
same to Jorgelina and Alma when they objected to his treatment of the children. Enrique acknowledged he previously hit Dayanara with a small horsewhip and his bare hands and, at another time, placed her in a cold water bath until she turned blue. He admitted sexually abusing Alma."
Plus, here's the lingering (and pending) question: What you do you do with the other kids at this point? Do you take them away from the mother? (The boyfriend is obviously out of the picture at this point, and will be in prison for an indefinite period.) Section 300(f) allows the court to take away the children if "the child's parent . . . caused the death of another child through abuse or neglect." The mother says -- and assume you believe her -- that she was (substantially) unaware of the ongoing abuse, but simultaneously admits that she knew about some of it (for example, after the boyfriend horsewhipped some of her children, she objected, and thereafter hid the horsewhip).
Does doing nothing (or little) to stop her boyfriend's abuse justify/authorize the court to take the children away from their mother? What are the best interests of the children? What rights does/should the mother have? Can you take away children because a parent has somewhat tried, but has been partially unsuccessful, in preventing their abuse, and that abuse and previously led to a child's death?
The trial court (Judge Kelty) takes the kids away. The Court of Appeal (Justice McDonald) reverses.
A tough case to read. And even tougher case, at least in my mind, to decide.