Without More, a Presumption Doesn't Make It a Fact

Richard H and Natasha W never married but lived together off and on and had two kids together, Quentin (now age 8) and Linda (age 6). They were no longer a couple, but Richard often visited his children. Natasha also had two other children, Marcus (age 16) and S.H. (age 10) from other relationships.

In 2013, the Los Angeles County Department of children and Family Services (DCS) removed all the children's from Natasha's home due to her illicit drug use, specifically cocaine and marijuana. However, instead of giving custody of his children to Richard, the children were placed in foster care. At the subsequent hearing, the trial court denied Richard's request for custody because he had a 1987-conviction for sexual abuse of a minor under the age of 14, and he was a registered sex offender. (He was 18 years old at the time of the conviction.) California law provides that a conviction of a sex-related offense (and lists them by penal code sections) is presumptive evidence that a person is a danger to children and unfit to be a custodial parent. The trial court further ordered the return of the children to Natasha, and only monitored visits and sex-abuse counseling for Richard.

Richard appealed.

A judge makes a decision based on evidence provided by each party. First, determining the value of the evidence and then whether it is negated by the opposing party's evidence. Only after weighing all the evidence, is a decision made. Presumptive evidence is a fact that already exists and takes the place of evidence specific to the case. Here, Richard's sex-abuse conviction and his status as a register sex offender took the place of specific instances of bad behavior showing him unifit to be a custodial parent. However, once the other party (in this case, Richard) shows evidence opposing the presumption, the presumption goes away and evidence of specific instances must be used to determine whether a person is a danger to children.

In the trial, Richard argued that the DCS provided reports with statements from Natasha and all four children showing that he had never sexually abused any of them. Nor did the DCS reports show any instances of bad parenting on Richard's part. The conviction was over 20 years old, and there had never been any other instances (alleged or otherwise) of abuse. And further, that even though he was a registered sex offender, the California Department of Probation had never monitored him. In fact, the probation department had never considered him a danger to children!

The appellate court determined that with the evidence Richard provided, the trial court should have removed the presumptive evidence (his conviction for sex abuse) and made a decision based on all the evidence provided.

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