Disability Alone Will Not Negate Custody

Mother and Father lived together and had a child together. Mother was severely disabled after an automobile accident. Although she could understand, she could not speak and had no control over her limbs. She was confined to a wheelchair. Father was physically fine, but had severe anger management problems. He also had arrests for assaults with deadly weapons and burglary. He was currently on parole. Further, according to Mother’s family members (and Mother herself), two or three times a week, Father would pick Mother up from her wheelchair, shake her and slap her face multiple times.

Neighbors of Mother and Father contacted the Los Angeles County Department of Children and Family Services (Department) with concerns for the welfare of their child, Baby T. Department social workers began an investigation, and after numerous contacts with Mother, Father Baby T’s doctor, and Mother’s family members, Department filed a petition with the juvenile court to have Baby T removed from Mother’s care.

Mother and Baby T moved in with Mother’s family members and a restraining order was placed against Father. He was also returned to jail for parole violations (i.e., his violence against Mother). Department also told Mother to have no further contact with Father, or she could lose custody of her child. Mother, however, wanted to maintain her relationship with Father and continued to text him constantly.

Department believed Mother did not bond with Baby T. She rarely held him, and did not financially provide for him, even though she received over $900 in SSI per month. Mother’s sister K, who also lived in the home, provided for Baby T’s financial needs and his care giving.

Ultimately, the Department recommended that Mother was unable to meet Baby T’s basic needs; that he should be made a dependent of the juvenile court and placed with K to ensure his safety and well-being.

The juvenile court decided to leave Baby T in Mother’s care, but was very concerned about doing so. In addressing Mother the court said: “…[you have] some very, very serious thought [regarding] what you are going to do in the future because this is a very violent man that you are dealing with. And you being in the physical condition that you are in, you are very, very vulnerable to being seriously hurt if not killed. And it is my responsibility to ensure the well-being and safety of your child. If I get information that you are exposing this child to violence, either to yourself or to the child, that you are allowing the child to have contact with [Father] without an appropriate monitor, then you are going to have to make a choice between [him] and your child.... I cannot make it more clear to you than that. I am very sympathetic to you. Okay? I would like to keep this child with you, and I will do so if you conduct yourself in a way where you obey the court’s orders and you do not expose this child to an unsafe dangerous situation.”

In a later hearing, Department noted that Baby T was doing well. However, Mother was getting worse. Her legs no longer bent at the knees, but stuck out straight. The only movement she made was with her left hand to text people. She provided no financial support for Baby T, no bonding with Baby T and she still wanted a relationship with Father. K took care of Baby T and provided for him financially. K wanted to move out and continue to care for Baby T. The juvenile court granted Department’s request and removed custody from Mother to K. It did so, not because of Mother’s disability, but because of a “…substantial risk of harm to a child as a result of the inability of a parent to adequately supervise or protect that child...”

The court noted that Mother had very little control over her limbs, could not speak, used a wheelchair and relied on others to meet all of her own activities of daily living. She did have some movement and control in her left hand and was able to communicate by way of text, but her unwillingness to parent Baby T, her lack of interest in him, and her and failure to financially provide for him put Baby T at a substantial risk of harm. Further, her continued attempts to have a relationship with Father could also put Baby T at a substantial risk of harm.

Mother appealed arguing that her disability should not prevent her from parenting her child.

The Appellate Court agreed with the Juvenile Court. Baby T was not removed from Mother’s care solely for his disability, but her inability to try to parent him. She did not involve herself in his day-to-day life, nor provide for any of his needs. She did not bond with him and she did not spend money on necessaries, such as diapers and formula. Further, her refusal to separate herself from Father, a violent person, could place Baby T’s life in harm.

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