Thursday, May 09, 2019

In re H.D. (Cal. Ct. App. - May 8, 2019)


The little kids want to be with stepmom, who's taking care of them now, but biological mother ("Mother") wants them too. Mother lost the kids when she was addicted to meth, at which point Father got custody.

What to do?

The dispositive factual question is whether Mother ever "abandoned" the kids.  The trial court thought she did.  Over a year ago, she tried to talk to the kids, but she was addicted then, and Father didn't let her.  So then Mother tries to get clean, and for over a year, doesn't talk to the kids, doesn't reach out to the kids, doesn't pay child support, etc.

The trial court thinks that's abandonment.

The Court of Appeal reverses.

You can see where the Court of Appeal's coming from.  It's harsh (and counterproductive) to say that a parent "abandons" their kids just because they're in treatment.  We don't want that.  We want parents to get clean.

So the Court of Appeal says that's reasonable, and wasn't "abandoning" the kids.

But I can also see why the trial court might have come out the other way.  It's not like Mother was in an inpatient facility for an entire year.  During the year and a half she had no contact with the kids, she was in residential treatment for a sum total of 30 days.

Yes, she did six months of sober living after that, then another six months of outpatient treatment.  But it's not like Mother was incapable of at least trying to contact her kids during that period.  You can still write letters, or make telephone calls, or send a $5 bill on a kid's birthday even when you're living in a sober living home, or doing the occasional outpatient therapy.  You've got an entire life to live.  Sure, you may be primarily focused on staying sober.  But that doesn't mean that you can just ignore your kids, or that it's impossible to (at least try to) reach out.  Particularly if it's true that you are in fact clean and sober during this entire year.

Now, it'd be one thing if Mother was laser-focused on sobriety during this entire year-long period.  I could see a court saying that if you're really spending every waking moment on sobriety, that doesn't mean you're ditching your kids during this period.

But during this year-long period, Mother meets a guy, gets engaged, and gets pregnant.  So clearly she's spending some time not focusing exclusively on sobriety, and instead on developing and nurturing human relationships.  If you've got time to spend on a new guy -- no small interpersonal task -- you've got time to spend on your kids, no?

Or at least I could imagine a trial court rationally seeing it that way.  Having actually seen and evaluated the participants in this process and their veracity, as opposed to merely viewing a cold appellate record.

So this may be one of those cases where the standard of review might actually matter.  I could see a trial court saying, you know what, sure, she could have reached out to the kids during that year and a half, and, yeah, she was doing a lot of outside things apart from merely staying sober, but I still think she always thought about the kids and planned on getting back with them.

But I could also see a trial court concluding otherwise; that during that 18-month period, she simply didn't care about her existing kids, and was more focused on herself and her new relationship and did nothing at all -- deliberately -- with respect to those children, thereby abandoning them.  At which point we're free to give the kids to their Father and the parents to which they've grown accustomed and consider their family.

But the Court of Appeal thinks there's only one conclusion to be drawn from the undisputed facts.

As I started out:  Maybe.

Maybe not.