July 27, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In a much-discussed opinion, the Supreme Court of California has vastly extended the state’s power over children while diminishing parental rights, perhaps unconsitutionally. The case is called In re R.T.
In it, the mother, Lisa E., was faced with a frankly incorrigible teenaged daughter. The girl started running away from home at age 14, became pregnant at 15 and now, at age 17, is pregnant again. Her first child is a ward of the state. Lisa has made every effort within her power to control R.T., including sending her to live with Lisa’s parents, all to no avail. That’s true despite the fact that Lisa’s father has a history of working with troubled youth.
Importantly, no one in the case claims Lisa to have abused or neglected R.T. or to be an unfit parent. Indeed, it is expressly stated that she is none of those things and that the fault for R.T.’s irresponsible behavior lies strictly with R.T. herself.
But the Los Angeles County Department of Children and Family Services wants to take her from her mother anyway and place her in foster care. (Of course, unstated by the Supreme Court, R.T. will reach her majority in about six months and the entire issue will become moot.) The question before the court is whether the law allows the state to take a child from a parent despite the parent’s being in no way abusive, neglectful or unfit. Ominously for countless future children, the Supreme Court says it does.
In my view, the Court is wrong on at least two counts.
The California statute relied on by the DCFS and the Court allows the state to exercise jurisdiction over a child if the parent has failed to or is unable to adequately supervise or protect the child and “the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness.”
So there are two questions. First, has Lisa E. failed or been unable to supervise or protect R.T.? The second is whether R.T. has suffered or is at substantial risk of suffering serious harm?
The answer to the first question is ‘yes.’ Clearly Lisa has been unable to adequately supervise R.T. The facts make that clear. Interestingly enough, the Court spent 10 pages discussing the statutory issues in the case, of which 9 ½ were used discussing the issue of “failure” or “inability.” By contrast the Court spent but a single sentence on whether R.T. has suffered harm or is at substantial risk thereof.
Given the grave risk of harm sex trafficking poses to a child, one missed opportunity to protect a child is one too many; thus, the cause of a parent‘s inability to protect a child is immaterial to imposing jurisdiction under section 300, subdivision (b)(2).
Really? The Court gives no hint about where it got the notion that sex trafficking poses “a grave risk of harm” to any child, much less the one in this case. Was there evidence adduced in court on that subject? If so, the Court nowhere mentions it leaving us to conclude that the justices did what appellate procedure allows them to do in only the rarest of cases – it inserted evidence into the record where there was none. That can be appropriate when the evidence is so well known and uncontroversial that to pretend it didn’t exist would result in a perverse or unjust decision.
But, is that the case here? The fact is that we know comparatively little about children trafficked for sex. What we do know comes mostly from a study of child sex workers in New York City by researchers at John Jay College. Its findings don’t bode well for the California Justices’ bald assumption that sex trafficking poses a “substantial risk of harm” to R.T.
In the first place, R.T. has been running away from her mother’s home for some 3 ½ years now. Has she been trafficked into the sex trade? Again, the Court cited no evidence for that proposition and one would think it would have if such evidence had been produced at trial. After all, if there’s such a “substantial” risk, surely R.T. would have fallen victim to it by now. Indeed, that’s a lot more likely than her doing so now at an older age and within the next six months, at which time this is all out of the DCFS’s hands anyway.
So how many children wind up in the sex trade? The John Jay researchers found a little over 3,900 in New York City with a population of about 8 million. That’s not a yearly total, of course, but an overall one. Los Angeles has about 4 million people, so it’s fair to conclude that it has about 2,000 child sex workers.
About 48% of child sex workers are girls, so they number about 960 in Los Angeles.
Finally, one of the strongest predictors of whether a child will go into sex work is that he/she was sexually abused earlier in life. See here (Alternet, 11/2/13).
While most youth entered ‘the life’ of prostitution between the ages of 11-14, their sexual exploitive situation began usually between the ages of 6-10 and documented as a child abuse case, according to Tina Frundt, sex trafficking survivor and founder of anti-trafficking non-profit Courtney’s House.
And yet there’s no indication in the record that R.T. was sexually abused.
In short, the Supreme Court’s conclusion, apparently based on no evidence whatsoever, actually contradicts the facts about children trafficked for sex. Very clearly, no sensible definition of the term “substantial risk of harm” describes R.T.’s situation regarding the chances of her being trafficked for sex. And of course no other possibility of “substantial risk” has been presented by anyone in this case.
The Court engaged in some very questionable behavior in order to arrive at the conclusion that R.T. is at a substantial risk of harm. In so doing, it’s opened the door to the DCFS to take more and more children from perfectly fit parents on specious claims that, even though they’ve incurred no harm, some vague, ill-defined risk lurks around the corner just waiting to pounce.
But that’s not all. I’ll say more about this tomorrow.
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