Justice Wiley rightly publishes this opinion. You generally can't take away parental rights just because the parent is in prison. There has to be some harm to the child.
In the case at hand, Father and Mother had joint custody, but then father committed a crime and went to prison. Father arranged for the child to live with his sister, Martha, and that worked out just fine. But one day, Mother picked up the child and refused to return her, and since Mother had joint custody, there was nothing Martha could do about it. So the child was with Mother. Which very much didn't work out -- I'll not recount the many problems there (including, weirdly but insignificantly, that Mother often picked up the child from school "wearing a bathing suit") -- so the court removed the child from Mother.
But at the same time, the court also took away Father's rights, on the theory that he couldn't care for the child while in prison. Hence the child's appeal, since the child wants Father to retain parental rights and loves Father.
The Court of Appeal reverses the decision below and remands for reconsideration in light of whatever events have transpired in the meantime.
As I said, Justice Wiley's opinion is helpful, and seems generally right to me. But I nonetheless wanted to mention a couple of nits that came to mind while reading it.
First, at the top of page seven, the opinion claims that the child "was not [] affected by the father's criminal activity" (which involved possession of a gun and drugs). I agree that his crime wasn't alone sufficient to terminate Father's parental rights, but it seems wrong to say that the child wasn't affected by his crime. She was. If he hadn't committed a crime, he wouldn't have gone to prison, and the child would have retained his in-person love, affection and companionship. She pretty much entirely lost that once he went to prison. She was accordingly most definitely affected by his crime. It harmed her, and in a way about which we care. (Again, that might not alone be sufficient to terminate parental rights, but it affected her, and I would not say or pretend that it didn't.)
Plus, the fact that Father was in prison almost certainly made it a fair piece harder for him to prevent Mother 's alleged psychosis and drug use from harming the child. Father apparently tried -- or at least started the process -- of trying to get sole custody of the child once Mother took the kid away from Martha. That'd have been great. The trial court found that Father failed to protect the child from Mother while he was in prison, but Justice Wiley's opinion responds that since Mother had joint custody, Father "could not be blamed for failing to do what he lacked the legal right to do" (e.g., stopping Mother from taking the child from Martha). That's true to a degree.
But Father did have a legal right to request that the court remove joint custody and give sole custody to Father (as he indeed attempted to do). And the fact that he was in prison made such a request more difficult to effectuate -- both practically (because it's tough to file things in prison) as well as effectively (because judges look somewhat less kindly on the prospect of giving sole custody to someone who's in prison and hence can't personally take care of the child). So, in part, yeah, Father can, in fact, perhaps be blamed -- at least a little -- for not doing something that he indeed had a legal right to at least attempt to do.
Lastly, I would have liked to hear more about what seems to be an important undercurrent here. Justice Wiley's opinion contains the following brief mention: "The juvenile court originally detained A.M. only from the mother. However, after noting that a lack of removal from the father might impair Martha’s ability to get funding, at county counsel’s suggestion," there was another hearing, and the court at that point removed the child from Father as well."
If the real reason the trial court removed the child from Father as well was simply to get the child more support, and that worked, well, geeze, I totally understand why it did what it did. (Even if that's perhaps legally erroneous.) Is the ultimate effect of giving Father back his parental rights that this seven-year old child now has less support (e.g., food, money, etc.) than she did before today's Court of Appeal opinion? If so, that radically sucks. And if that's the real reason why Commissioner Marpet (in L.A.) did what he did here, quite frankly, I can both see why, and empathize with, why that happened. Something that the tenor of the Court of Appeal's opinion doesn't really reflect.
So I would very much have liked to hear more about this. I'm not entrenched enough in the dependency space to understand the details. But I definitely want this child to have (1) a parent who loves them and who can at least make arrangements for her care while he's in prison, while (2) simultaneously getting the support she needs. If, for some reason, (1) is inconsistent with (2), I would like someone to explain to me why that's in fact the case. 'Cause it needs to change.
