Panel reverses removal of well-fed, clean, safe children

A homeless father tried to do everything right to take care of his children. The county took them anyway.

However, a California court of appeal agreed with the father and his two sons Friday that a Los Angeles County juvenile court commissioner used insufficient evidence to justify removing the children based on a social worker's belief the father had been using methamphetamines because he failed to make eye contact with her.

"We agree with a general observation that drug abuse can contribute to homelessness," Presiding Justice Lee S. Edmon of the 2nd District Court of Appeal Division 3 wrote in an 18-page opinion. "But no evidence supports such a link here. All that can be said on this record is poverty caused the family's homelessness."

The father, referred to in the decision as Jose G., with his 8- and 10-year-old sons, lived in an abandoned home in mid-July 2020 until the Los Angeles County Department of Children and Family Services were alerted.

The property's manager told social workers he allowed the family to live there since the house was going to be demolished, according to Friday's unpublished opinion.

The father, represented by Canoga Park attorney Gina Zaragoza, worked as a gardener. He collected water from a fire hydrant and electricity from a light post using extension cords and was able to use a portable stove and microwave to make food, the court opinion stated. He kept a cooler for fresh food and used cash assistance for basic necessities and transportation. The children were well-fed, attended school before the COVID-19 pandemic, and were never left alone, according to the opinion.

The children's mother was deported after attacking the father with a knife in 2018. However, there was no evidence that the father had ever abused the children and "it does not appear that they witnessed it [the altercation], and neither child could remember it when interviewed," the panel wrote Friday.

The father admitted to periodically using methamphetamine in the past but only outside the children's presence and when they were under the care of a sitter. He tested negative at the time the county removed the children.

"The social worker noted that when she first interviewed father on July 13, 2020, he had made eye contact with her and understood what she was telling him," according to the record in Friday's opinion. "But when she saw him on August 6, 2020, he had limited eye contact, sporadic rapid eye movement, and difficulty processing information. Even so, father's second drug test on August 4, 2020 produced negative results."

He consistently tested negative for methamphetamines for months before his appeal. Information received just before the petition hearing indicated he was enrolled in parenting classes and "his weekly drug tests continued to be negative."

While Juvenile Court Commissioner Lisa A. Brackelmanns agreed to dismiss one count alleged against the father regarding serious physical harm due to domestic violence, and one count regarding the family's living conditions, it kept in place counts regarding failure to protect due to domestic violence and failure to protect due to father's substance abuse.

The county was represented by Rodrigo A. Castro-Silva of the County Counsel's Office.

"As to father's methamphetamine use, the juvenile court said that four months of clean tests were insufficient to give it confidence he would not use again when under stress," the panel wrote. And as to the remaining failure to protect due to domestic violence count, the panel said "Other than this single incident, the children were healthy and well-groomed, the parents were separated, and there was no evidence the children were currently abused or exposed to abuse."

Under Section 300 of the Welfare and Institution Code, a court can terminate parental rights and assert jurisdiction over children if the "'child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability' of the parent to adequately supervise or protect the child'" Edmon wrote.

In reversing the Los Angeles County court, the panel said, "Substance use must not be confused with substance abuse."

"To find an allegation true under Section 300, subdivision (b), there must be a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future because of the substance abuse," the panel found.

Concurring with the opinion were Justices Luis A. Lavin and Anne H. Egerton. In re: Ender H., et al., B311003.