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Court of Appeal:
Mother Having ‘Too Many Beers’ Doesn’t Justify Wardship
Opinion Says Ordering Court Supervision Over Children Due to Single Incident Was an Overreaching Due to Absence of Any Evidence That Mother Put Children in Danger, Has Substance Abuse Problem
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal held on Friday that an order placing a family under the supervision of the court was unjustified based on a single instance of intoxication by the mother while riding a bus with her children where there was ample evidence that the minors were well-cared for, bonded to their family, excelling in school, and living in a tidy home with plenty of food.
The incident giving rise to the petition for wardship occurred on Feb. 19, 2023, when Elizabeth T. got onto a bus with her children Gilberto Jr., George, and Hector. The children were 10, eight, and six at the time.
She admitted to having some beer at lunch with her father-in-law immediately before the ride and was wearing a boot on her left foot, which was broken due to a soccer injury. After the children were seated, but before she sat down, the bus jerked and Elizabeth T. fell.
She was transported to a local emergency room, where the treating physician noted that the mother appeared alert, cooperative, and spoke normally. Elizabeth T. reports that she yelled at her children to stop running around the emergency room and a woman responded by saying that someone should call the authorities and take the minors.
An anonymous caller contacted the Department of Children and Family Services (“DCFS”) from the hospital.
DCFS Intervention
A social worker interviewed Elizabeth T., who denied being heavily intoxicated despite a blood alcohol level of 0.22 percent and testing positive for marijuana. The children—all of whom were alert, smiling, well-groomed, dressed appropriately, and showed no signs of abuse or neglect—said their mother was not stumbling or “acting weird,” did not use drugs at home, and warned the kids against drinking and taking narcotics.
Further drug and alcohol testing, to which Elizabeth T. consented, returned with negative results and an unannounced school visit revealed that the children were fine.
On May 2, 2023, DCFS filed a petition in Juvenile Court recommending supervision of the children, alleging that the children had suffered, or there was a substantial risk that they would suffer, serious physical harm or illness within the meaning of Welfare and Institutions Code §300(b).
Los Angeles Superior Court Commissioner Lucia J. Murillo noted that the family was the subject of an earlier petition relating to substance abuse and ordered informal supervision under §360(b), saying that “[i]t’s not illegal to drink alcohol, not illegal to consume marijuana, however, one has to do so, when one has children, responsibly and not while they are under your care and supervision.” Elizabeth T. appealed.
Justice John L. Segal wrote the opinion, filed Aug. 20 and certified for publication on Thursday, reversing the order. He said:
“Elizabeth T. made a mistake. She had too many beers and injured her leg when she fell on a bus while she was taking her three children to see their father. One thing led to another, the Los Angeles County Department of Children and Family Services became involved….
“We conclude that the evidence of this incident, along with a four-year-old sustained allegation of substance abuse of which there is no evidence in the record, did not support the court’s finding Elizabeth’s conduct created a substantial risk of serious physical harm or illness. Therefore, we reverse the court’s jurisdiction findings and disposition orders.”
Presiding Justice Gonzalo C. Martinez and Justice Natalie P. Stone joined in the opinion.
Risk of Harm
Sec. 300(b) provides that the juvenile court may declare a child a dependent child of the court when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness” due to “[t]he failure…of the child’s parent…to adequately supervise” or “[t]he inability…to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
Segal noted that “[f]or jurisdiction under section 300,…the child protective agency must prove that substance abuse makes the parent or guardian unable to provide regular care for a child and that this inability caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness” and that the section “requires proof a child is subject to the defined risk of harm at the time of the jurisdiction hearing.”
Applying the standard to the facts before the court, the jurist remarked:
“[T]he single incident of intoxication in this case did not result in harm to the children, and there is no evidence they were at risk of serious physical harm while riding the bus with their mother to meet their father. Although counsel for the Department argued Elizabeth’s blood alcohol content was ‘double the legal limit,’ that legal limit is for driving, and Elizabeth did not drive a car while intoxicated.
“[S]ix months elapsed in this case between the date of the bus incident and the jurisdiction and disposition hearing. During that time there is no evidence of any other incident where Elizabeth was intoxicated or under the influence of marijuana while caring for the children.”
Past Petition
He acknowledged the “sustained allegation from a prior…petition based on substance abuse. However, he wrote that “because that petition is not in the record on appeal, what little we know about it comes, not from any evidence, but from the argument by counsel for the Department at the jurisdiction and disposition hearing.”
The justice continued:
“We do not really know (because there is no evidence of it in this record) whether there even was a sustained allegation of substance abuse against Elizabeth in December 2018. But even if the juvenile court did sustain such an allegation in December 2018, there was no evidence Elizabeth regularly drank excessive amounts of alcohol or used marijuana while caring for the children five years later at the time of the jurisdiction hearing or the recent past.”
Segal also said Elizabeth T.’s “relative minimization of the bus incident” by never acknowledging that she drank too much that day was a factor to be considered, but concluded:
“Although Elizabeth failed to take full responsibility for her actions, she cooperated with the Department’s investigation, voluntarily submitted to a drug and alcohol test, and agreed to test in the future and to participate in other services, so long as the Department paid for them. In cases where courts have inferred a current risk of harm from a parent’s failure to take responsibility for past actions, there are typically other concerning factors, such as a parent’s failure to enroll in services the parent agreed to in a safety plan….None of those factors is present here.”
The case is In re Gilberto G., 2024 S.O.S. 3180.
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