It's unusual for me to talk about two dependency cases on successive days, but I couldn't help but think about this one.
The facts are relatively straightforward. Mother and Father have five kids, the oldest of which is eight years old. Father likes to drink; a lot. He's been arrested for drunk driving before. Father also (allegedly) punches Mother in the face on occasion, including on at least one occasion in front of some of the kids. One day, while Mother and Father watched a "low-rider" event, this transpired:
"During the drive home, Father began to yell at Mother, calling her names and accusing her of infidelity. Father then punched Mother several times in the face and she demanded he stop the vehicle and let her and the children out. As she was removing Cl.M. from her car seat, Father started to drive away, dragging Mother approximately two feet. Eventually, Father drove away with Cl.M. still in the vehicle. As a result of the incident, Mother sustained severe swelling, lacerations, and bruising to her face. Mother received medical treatment at the scene by paramedics."
Multiple choice question. Based on the foregoing events, the children can be taken away from:
(A) Father.
(B) Mother.
(C) Both (A) and (B).
(D) Neither (A) nor (B).
Have your answer?
The Court of Appeal holds that the correct answer is (C). The children can be taken away from Mother because she failed to prevent Father from driving drunk with the kids.
(Perhaps because she didn't want to again be punched in the face.)
Justice Baker holds that even if the sole basis for removal was Mother's failure to prevent Father from driving drunk, that's a sufficient basis for taking the children away from both parents. In an extreme case, where the father was constantly driving drunk and the Mother was fine with it, I could imagine such a holding. But there's minimal evidence here beyond the one event that Father routinely drives drunk with the kids in the car (though I admittedly don't think this is the first time), and it's not like there's any evidence that Mother is encouraging this -- here, she's trying to get the kids out of the car when Father starts to pull away. Moreover, the domestic violence background to me seems fairly relevant; I know it's not a total defense to child endangerment, but doesn't it at least matter that Mother might be somewhat reluctant to upset Father by, say, insisting that she (rather than he) drive home when he tends to respond by punching her in the face.
Plus, think about the obvious incentive effect here. Imagine that you're Mother and, presumably, very much want to keep your children, but for whatever reason -- economic, fear of violence, BWS, etc. -- don't feel like you can just pack up and leave the father of your five young kids. Your partner hits you in the face while driving drunk, and drags you down the street when you try to get out of the car. Are you going to call the police after this holding?
Not if you're smart. Because, apparently, if you do, sure, they're going to arrest Father (as they did here), but then they're going to take your kids away from you for six months. Under such settings, yeah, you might well decide that Father driving drunk and hitting you in the face is just the "cost of doing business" as compared to the fairly unpalatable alternative of entirely losing custody of your five children.
And we wonder why some people in certain communities don't call the police, and/or child welfare authorities?
Oh, one last thing. Imagine that a father in Brentwood, or Beverly Hills, is found to occasionally drive drunk with the kids in the car. Do you think CPS is going to take away the kids from Mother based on such findings?
I strongly suspect not. Do you know any people who were occasionally as kids driven by a father who had a bit too much to drink after a party? I definitely do. Were any of them removed by CPS from the custody of both of their parents? I think not.
Does it matter that the events at issue here took place in Compton, rather than elsewhere? You think?
I'm not a fan -- at all -- of having kids watch domestic violence between their parents, or having kids be watched, or driven, by an alcoholic parent. But I'm also not a huge fan of taking five little kids away from both of their parents and being put in a foster home for six months (and potentially forever) while Mother gets lectured about how she needs to protect her kids from being driven drunk even if it means she takes several punches to the face.
Should Mother leave Father? Sure. Of course she should. But you know what? The world ain't perfect, and sometimes, we face really crappy choices. I'm not sure that very imperfect world gets better, either in the short or long term, by removing little kids from their parents because Mommy on occasion does not have the wherewithal to take shots to her face to stop Daddy from driving when he's had too much to drink.
But maybe that's just me.
