Monday, January 27, 2020

In re J.M. (Cal. Ct. App. - Jan. 24, 2020)

On the one hand, this is a very depressing set of facts:

"J.M. was born in 2010. He suffered an accident at home when he was 10 months old, which rendered him permanently disabled. Since the accident J.M. has resided at the Children’s Hospital of Northern California, a rehabilitation facility formerly operated as The Children’s Recovery Center of Northern California. He suffers from anoxic brain injury, epilepsy, developmental delays, and bone disorders. He has gastrostomy and tracheal tubes to help him eat and breathe, and he will need them indefinitely. He is immobile, will never walk, and is fully dependent on others for care. He is nonverbal, but oriented to those with whom he interacts, communicating through eye gazes and facial expressions."

So he's a child with a serious, life-long disability, and who's lived in a hospital for virtually his entire existence.  And don't think that he's got particularly doting parents, either.  "J.M.’s father had never visited him, and his mother’s visits were infrequent. J.M. was taken into protective custody while continuing to reside at the hospital, and the Department filed a petition alleging that he was subject to the juvenile court’s jurisdiction because his parents were unwilling and/or unable to care for him upon discharge, and that both parents had a history of substance abuse."

On the other hand, there's hope.  Not for an eventual recovery.  But at least for a life, with a loving caretaker:

"The Department recommended a permanent plan of legal guardianship with J.M.’s maternal grandmother, who visited J.M. regularly and with whom J.M. had formed a positive emotional bond. J.M.’s two siblings, close to him in age, were also in the grandmother’s care, and she was committed to maintaining the sibling relationships. The social worker’s report stated that J.M.’s grandmother sought legal guardianship because she understood her grandson’s specialized care requirements and his emotional need for a familial connection—a need that her daughter (J.M.’s mother), who struggled with sobriety, was unable to meet. The grandmother understood the responsibilities of a legal guardianship; she was committed to overseeing J.M.’s care and providing the 'continuous emotional support and the family connection that the department and/or any other institution are not able to afford him.'"

That's nice.  You've got a loving, biologically related person, plus your siblings.  That's a family.  Even with all the limitations discussed above.

So what's the problem?

It's not that the grandmother has a criminal conviction or anything like that.  It's that, given the child's serious disabilities, and the fact that he's been in the hospital for (essentially) life, the child's not able to come and actually live with the grandmother.  He'll stay in the hospital.  But the grandmother will nonetheless be his legal guardian, and continue to visit, bring his siblings, make medical decisions on his behalf, etc.

That's fine with the Department of Family and Children's Services.  But it's not fine with J.M.'s court-appointed counsel.  Who argue against placement with the grandmother.

Typically, court-appointed attorneys in these types of cases are doing great (and underappreciated) work.  But, here, you wonder why counsel has elected to make this decision.  The argument is that placement with the grandmother will stop someone else from being selected to care for him, and that such an alternative might be willing and able to care for him in their home (rather than continuing to live in the hospital).

But, with respect, how realistic is that?  It's been a decade since his accident.  I see no evidence at all that anyone during that period (other than the grandmother) has been willing to step up and care for the child.  And if you're not getting adopted as a baby, what are the chances that someone's going to adopt a kid with serious disabilities once he's double digits?  To me, I think the Department has it more than right.  It'd of course be better if we could find someone who could care for the child out of the hospital (if that's even possible).  But, realistically, that's unlikely likely to happen.  And we've got a loving biological relative and the child's siblings there and available for him.  That's more than we have in many cases.  And it's a lot.  Let the grandmother be his guardian.

Which is ultimately what the trial court and Court of Appeal elect.

I understand (and appreciate) why we appoint counsel for minors who, as here, can't make their own decisions.  But, here, it looks to me like counsel's choice seems like the wrong one.  I'm happy that the case came out this way.  Notwithstanding counsel's well-argued contentions to the contrary.