Now California DCFS Can Take Children from Fit Parents on the Theory that They May be at Risk of Harm

July 28, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In yesterday’s piece, I described how the California Supreme Court dramatically expanded state power at the expense of parental rights in the case of In re R.T. R.T.’s mother, Lisa E., is agreed by all to be a fit parent who’s concerned for her daughter’s welfare. She’s done nothing wrong as a mother. She’s never abused or neglected R.T.

Despite that, she can’t control R.T.’s behavior. R.T. has been running away from home for the past 3 ½ years and is now 17. She became pregnant at age 15 and is pregnant again. Her first child is a ward of the state.

Under those facts, the Supreme Court said that the Los Angeles County Department of Children and Family Services may take R.T. from her mother and place her in foster care, despite Lisa’s having done nothing wrong. The “reason” given by the Court is that (a) Lisa is unable to care for and protect her daughter and (b) R.T. is at substantial risk of harm.

The only “evidence” cited by the Court actually isn’t evidence at all since, apparently, it was inserted into the record, not at the trial level and not by any expert witness, but by the Justice of the Supreme Court who wrote the opinion. Citing no authority for their claim, the majority simply stated that R.T. is at risk for being trafficked for sex and therefore is at substantial risk of harm.

And yet, as I demonstrated yesterday, the opposite is far more likely. The simple fact is that very few kids are actually trafficked for sex. Now, it’s true that there are a substantial number of child prostitutes on the streets of big cities like Los Angeles. But very few of them meet the criteria for having been trafficked. That’s because no one is forcing them to do what they do. The study by researchers at John Jay College I referred to yesterday has this to say about coercion:

Although several said that they felt peer pressure to join in, their narratives were generally less about being pressured to participate in CSEC (Commercial Sexual Exploitation of Children) markets as they were about economic necessity, fascination, and curiosity with what appeared to be an emerging lifestyle…

We did not find that market facilitators, or pimps, were key actors for initiating youth into the market (8%) or controlling them once they were in the market. Only 10% of the sample (6% of the boys and 14% of girls) reported that they had a market facilitator at the time of the interview.

I suspect the Court, high in its ivory tower in Sacramento, mistook the fact that R.T. has clearly had sex for her having been trafficked. The two are not the same, bald assertions to the contrary notwithstanding.

In re R.T. is now the law in California and all courts in that state must follow it. That is a bad omen to say the least. It is at once a massive expansion of state power and an equally massive diminution of parental rights. Put simply, now any theoretical risk to a child that’s deemed by some judge to be “substantial” can result in a child’s being taken from its home. The parents need have done nothing wrong, injurious or neglectful. They may be the finest and most loving of parents. But if they fail to protect their child, not only from actual harm, but from possible harm, they stand every chance of no longer having a child to protect. Show me any parent anywhere who can honestly say that he/she protects their child from all possible harms. Go ahead, I dare you.

And, speaking of parents, let’s think for a bit about the foster kind. The Court rightly said that Lisa E. was unable to control R.T.’s incorrigible behavior. She did everything she could within the bounds of the law, but to no avail. And yet somehow, the Court (and, I suspect, the DCFS) assumed that foster parents can do what Lisa E. can’t.

Why they so believe, I can’t guess. No one seriously pretends that foster care is per se better than parental care. And all agree that the fault in R.T.’s behavior lies not with her mother but with her. So how will foster parents be able to stop her from running away from home and doing what she wants to do? The girl is almost an adult and there are laws against restraining a person’s liberty. The fact is, R.T. is free to come and go as she wishes and, given that, foster parents will be no more capable of controlling her than Lisa E. or anyone else.

So turning her over to foster care won’t make a difference in R.T.’s behavior. The only difference it makes is in California law, state power and parents’ rights. And that, I suspect, is the point. Governments easily arrogate power to themselves. ‘Twas ever thus. That the court used very dodgy “facts” with which to accomplish the task only makes the process remarkably easy to see.

Now, while the court was busy dodging facts and logic, it also had to dodge a previous appellate court opinion that concluded exactly the opposite, i.e. that there had to be some form of parental fault for the state to take a child from a parent.

I’ll deal more with that next time.




National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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