Thursday, July 20, 2017

In Re R.T. (Cal. Supreme Ct. - July 20, 2017)

This seems fine.  I agree with the California Supreme Court that the relevant statute allows kids to be taken away from their parents even if the parent isn't at fault.  The text of the statute sort of says that, and the legislative history makes it clear.  If the kid's in danger, it doesn't matter whether the danger is "because" of the parent.  The state can intervene.

Okay.  That's indeed what the statute says.

But am I really the only one troubled by the consequences -- e.g., the constitutionality -- of such a statutory regime?

That was principally why the one Court of Appeal opinion below held (contrary to today's opinion) that the statute must require fault.  Because to do otherwise, the Court of Appeal thought, might well violate the Due Process Clause.  Can you really take a kid away from the parent when the parent isn't at all at fault?

Let's be clear.  That's precisely what's at stake here.  The minor at issue here is definitely a problem.  She's disobedient, has already had two kids of her own (at 17), throws things at her mother, stays out all night, etc.  Yeah, we want to stop that.

But it's not like the parent doesn't care.  Or doesn't try.  Her hardest, even.  From everything we read in today's opinion, she's trying super hard.  Doing all the things that we'd try as parents.  It's just not working.  (And those of us with children certainly can understand.  We don't have an 100% success rate at everything we try to instill in our children.  Even with respect to the most basic stuff.)

But the California Supreme Court says that doesn't matter.  You can still have your kid taken away from you -- and be declared an "unfit" parent -- even if it's in no way, shape or form your fault.

That's troubling, no?

At least to me.  Apparently not so much to the California Supreme Court.  Because the Court says very very little about that point.  Indeed, it's entire argument in that regard consists of a single paragraph at the end of the opinion.  When, in the context of distinguishing a contrary lower court opinion, the Court basically just concludes that the Due Process Clause isn't violated by taking a kid away from her parents since the statutory regime "includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare" and "is a remarkable system of checks and balances."

That sentiment is small solace, I'd think, to any parent who had their kid taken away from them through what everyone concedes is totally no fault of their own.  As it'd be similarly small solace, I'd imagine, if any of the justices had their own children taken away from them in similar settings.

Which is not to say that I don't get the underlying motivation.  The kid's in trouble.  We need -- or at least want -- to do something.  So even if the parent's not at fault, we may well want to take the kid away.  Because that at least has the possibility of working.

But remember a couple of things.  The first of which is that taking the kid away is hardly a panacea.  Maybe if the results of the juvenile dependency system were uniformly positive I'd take a different view.  But they're not.  A lot of times, kids do worse in that system than with their parents.  And I'd imagine that's even more likely when, as here, the parent is totally trying and is not at all at fault for the minor's delinquency.  So don't for a second think that putting a kid in the "system" means that we are going to solve the problem.  Sometimes it stays the same.  Sometimes it gets even worse.  And the price for all this "progress" (or lack thereof) is inevitably the disruption (or destruction) of a basic and fundamental value:  the relationship between a parent and her child.

And, yes, the system contains a lot of checks and balances.  But, at least until today, one of the most basic of those checks and balances was that kids generally only get taken away when the parent is at fault.  I've read thousands of these cases, and when the kids get taken away, almost invariably, there's parental neglect (drug abuse, violence, etc.) that's a critical component of making that undeniably sad result morally palatable.  Take that way -- take away the need for fault -- and you're taking way what I'd have thought before today was one of the most fundamental of the relevant balances.

Now, I understand that we're trying to do what's best for the kid.  And that's a critical goal.  I too want to try to make every child reach his or her full potential.

But we've got to balance that between (1) the reality that, lots of times, we can't do better than the parents (and, I suspect, there's a darn good chance that the "system" will do no better for the child than her mother has done here), and (2) the devastating consequences to a mother when a child is forcibly removed from her by the state, without her consent, in circumstances in which even the state admits that the mother has done nothing wrong.

Those considerations, at least to me, are worth perhaps a little more than a paragraph of thought and brief platitudes about the "remarkable system of checks and balances" that is the existing dependency regime.

So I think, in short, that I'd take the Due Process argument a bit more seriously, or at least give it more weight, than I think the Court does here.  And maybe even expressly hold that it creates an outside limit on when the state can take children away when, as here, there's no fault at all by the parents.  Unless the state can show that it's likely to do a better job, with some reason to believe that it's efforts at discipline will be more effective than the parent's, I'm super reluctant to say that the Due Process Clause permits the government to take away someone's kid when the parent has done the exact same things that every single one of us would have done under the circumstances.

Food for thought.