In re Yvonne W.: Cal. Fourth on “Substantial Risk of Detriment” to Child

The fact that a mom had been arrested on marijuana charges, had previously had a boyfriend who allegedly sold crack cocaine and marijuana out of her house, and was now living at a shelter did not establish a “substantial risk of detriment” preventing her from being reunited with her child, the Fourth District Court of Appeal held 7/28/08 in In re Yvonne W<a, D052204, an opinion that was published on 8/14/08.

The shelter in question in this case was the San Diego St. Vincent de Paul Village shelter. That’s interesting to me because I volunteered there when I was in high school. It might not be the Ritz, but it certainly exists to help folks in need, not to create “detriment.”

The court writes:

The uncontroverted evidence showed that Celeste completed her case plan and that she has been sober for more than a year. The social worker reported that Celeste is committed to her sobriety, that she appears to have benefitted from the services provided, and that she has made changes in her life that are in her children’s best interests. Celeste has acquired knowledge of positive parenting and is able to show empathy. Celeste has stable and “appropriate” housing at a long-term shelter where she is safely parenting her son. In essence, Celeste did everything Agency asked of her, including eliminating the conditions that led to Yvonne’s out-of-home placement. Further, Yvonne’s behavior improved as a result of regular visits with Celeste.

The court recognized Celeste’s progress and expressly commended her for maintaining her sobriety and obtaining long-term housing at the shelter. Nevertheless, the court found detriment based on Celeste’s housing situation, citing Yvonne’s expressed fear, anxiety and unhappiness about living in the shelter. However, nothing in the record shows that conditions at the shelter pose a risk of harm to Yvonne in any identifiable way. Indeed, Celeste is successfully raising her young son in that environment and is able to provide for his safety, health and well-being. Yvonne was having unsupervised weekend visits at the shelter with no reported problems other than her dislike of the shelter and its residents. A child’s dislike of a parent’s living arrangement, without more, does not constitute a substantial risk of detriment within the meaning of section 366.22, subdivision (a). Proving substantial detriment cannot mean merely proving that a parent’s living arrangement is less than ideal. (David B. v. Superior Court, supra, 123 Cal.App.4th at p. 789 [court could not properly consider that parent was too poor to afford housing to support its detriment finding].) Celeste’s limited financial resources, which require her to live in a shelter until she can obtain alternative housing, is not a legitimate ground for finding detriment. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1213 [agency cannot “bootstrap” the fact that parent was too poor to afford housing to support a detriment finding].) “We cannot separate parents and their children merely because they are poor.” (David B. v. Superior Court, supra, at p. 792.)