Wednesday, March 16, 2011

In Re B.T. (Cal. Ct. App. - March 16, 2011)

Here's something you don't see every day.

It's a statutory rape case.  Where Social Services takes away the resulting child.

Wait.  That's not that unusual.  So what's weird?

Reverse the genders.  Here the offender is Debra, a 38-year old woman married to someone else, who has sex with her 14- (or 15-) year old neighbor, who's a friend of Debra's elder son.  A child get conceived out of this unlawful union, and based on the statutory rape, Social Services takes the baby away from it mother.  Not only that, but it also takes away Debra's three other children, ages 17, 12 and 9, on the theory that the mother might sexually abuse them as well.  On the theory that if you sleep with your son's friend, you might well sleep with your son as well.

The juvenile court takes jurisdiction over the baby on the theory that he's at risk of sexual abuse, and decides to award full physical and legal custody to Miguel, with monitored visitation by Debra.  So the person who's going to actually raise this baby is his father.  Someone who spends most of his day at school.  In the tenth grade.  Who doesn't know the baby's birthday.  Who has no source of income.  Who has never taken the baby to the doctor and who did not know the name of his pediatrician.  Who, after school, spends two hours playing football and basketball during sports season.  That's the best parent.  Because the mother, after all, is a child molester.

The Court of Appeal reverses.  For reasons that I think are pretty clear.  Which I can't say any better than the author of the opinion, Justice Bedsworth.  So I'll just quote him:

"We reverse. After carefully examining the record, we cannot find substantial evidence to support the juvenile court's jurisdiction over B.T. [the baby] at the time the findings and orders were made. There was no evidence that Debra was likely to abuse or neglect B.T. On the contrary, she had an exemplary track record of child-rearing. While her relationship with Miguel certainly reflected poorly upon her judgment in one area, nothing suggested that it would cause her to neglect or abuse her baby daughter, especially since there was no evidence at all of any past abuse of her three other children, or of any other children. . . .

There is no evidence in the record that B.T. had suffered any serious physical harm or illness or any harm or illness at all while she was in Debra's care after her birth. B.T. was in fine shape when the social worker visited Debra's home on April 12, 2010, even though she was seven weeks premature. Debra's family had had no encounters with SSA before B.T. and the other children were detained. The record of Debra's visits with B.T. after she was detained confirmed that Debra is a loving and experienced mother, well able to take proper care of a small child. . . .

This record contains no evidence that Debra or anyone else ever sexually abused B.T. SSA, however, alleged that Debra's former relationship with Miguel placed B.T. at risk for sexual abuse.

SSA's position assumes an adult woman who has had a consensual sexual relationship with an unrelated 15-year-old boy will probably sexually abuse her infant daughter. This is, of course, a complete non sequitur, so it is not surprising that the record contains no evidence to support this assumption. There was, for example, no expert testimony to this effect. (Cf. In re Maria R. (2010) 185 Cal.App.4th 48, 68 [no scientific authority or empirical evidence cited to support conclusion that man who sexually abuses female child is likely to abuse male child].) If Debra were given to sexually abusing her children, she had three handy before B.T. was born, including two boys. All three older children denied ever being abused, sexually or otherwise; no evidence contradicted their denials or even called them into question. SSA presented no evidence of Debra‟s being accused of molesting another child in the past. The record is devoid of evidence of a risk to B.T. of being molested by Debra.

If Miguel's stories are credited, he was by his own admission a more-than-willing participant in the relationship, which is not surprising with an adolescent boy. Generally speaking, abused children do not repeatedly volunteer to put themselves in harm‟s way. This presents a situation far different from the one SSA proposed. It also presents a situation far different from the facts of the cases cited in SSA's brief to support its theory of threatened sexual abuse, all of which involved adults in some sort of parental role forcing themselves on unwilling and helpless children residing in their homes. [Citations]

We do not wish to be understood as excusing Debra's behavior or minimizing its gravity. In addition to being potentially a serious criminal offense, it was a many-faceted betrayal of people who had every right to trust her – her husband, her children, Elsa, and Miguel, to name the most obvious ones. The Penal Code statutes, designed to punish and deter, are in place to deal with her conduct.

Juvenile dependency proceedings, however, have a different focus: protecting children and serving their best interests, not punishing the parent.  Nothing supports the idea B.T. was at any risk of harm from Debra. Whatever her faults were with regard to Miguel, Debra has taken good care of her children. Her three older children, at least as far as this record reveals, do her and her husband great credit. No evidence presented at the time of the hearing suggested that B.T. would receive anything but the same upbringing and attention from Debra. On the contrary, the evidence showed that before SSA intervened, B.T. was thriving in her care. . . .

[T]he kids were all right. The three older children were well cared for and displayed every indication of having had a secure family life. They gave no hint of feeling any need to be protected from their mother. [Debra's husband], who was understandably angry at both Debra and Miguel, had nevertheless rallied round to protect the children in this crisis. The baby was doing fine. The most searching interviews and home inspections revealed no evidence of any kind of child abuse or neglect, any domestic violence, any drugs, any previous trouble with the law or with social services. SSA, however, became so busy demonizing Debra that it abandoned its role as protector of children and preserver of families. SSA took all four children away, exacerbating the existing family turmoil. The older children were sent to live with their paternal grandparents, who speak no English. (The older children speak no Spanish.) The baby, not yet five months old, went to a county facility, then to Elsa and Miguel's home. . . .

Medical professionals caring for B.T. quite probably would listen more to the mother of three healthy children than to a 16-year-old boy without prior parental experience who believes – as Miguel testified – that a body temperature above 93 indicates fever and who would treat a fever by putting the baby down to rest. Would anyone focused on B.T.’s best interests oppose such a preference? . . . .

Debra made a grave mistake, regardless of whether she or Miguel is telling the truth about their relationship. But depriving B.T. of her mother's care as punishment for this mistake is not in keeping with the purpose of the dependency statutes and is inexplicable in any terms other than misplaced moral outrage."

Though I wonder if Justice Bedsworth's -- or my -- reaction would be different if everything were the same except the genders.  Imagine that it's a 38-year old male and a 14-year old girl.  Same result?

Tough question.  Even for me.
Strong stuff.  But also powerful.  To me, anyway.