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In Re Ethan C. (Cal. Ct. App. - Sept. 24, 2010)

By Shaun Martin

Your 18-month old daughter looks like she might have injured her arm.  So you decide to take her to the hospital to get her checked out.  Someone else is currently using your car, which is the one with the child seat in it.  You try to find another child seat but can't.  You ultimately decide that it's important to get your kid to the hospital sooner rather than later, so you drive there without a car seat, with your kid sitting on the lap of her grandmother.

On the way to the hospital, some dude speeds through a stop sign and slams into your car.  Your daughter is thrown from the vehicle and dies.

You're not at fault at all for the accident.  The other dude was speeding and ran through a stop sign, and may well be charged with homicide, and there was no way for you to avoid the accident.  It could have happened to anyone.

But this hardly assuages your guilt over the death of your daughter.  You should have had her in a car seat.  You thought that getting to the hospital was more important, but as it turns out, this was a fatal error.  Needless to say, you're completely devastated.

Oh, one more thing.  Technically, under Section 300(f) of the Welfare and Institutions Code, your failure to secure the child in a car seat "caused the death of another child."  So the state takes away your two other kids.

You argue that you haven't been charged with a crime, haven't been convicted, and surely didn't have any intent to harm your child when you drove her to the hospital.  How is it fair to take the other kids way based upon an accident that wasn't your fault?

But the Court of Appeal affirms.  Section 300(f) says that a court may take your kids away if "the child's parent or guardian caused the death of another through abuse or neglect."  You neglected to put your child in a car seat, and she died.  End of story.

Admittedly, in this particular case, there are other allegations as well (grandparents have a dirty home, wife has a history of domestic violence and borderline personality disorder, etc.) that potentially supported the ultimate decision to take the kids away from the father.  But that was simply icing on the cake, as Section 300(f) granted jurisdiction based solely on the failure to secure the kid in a child seat.

An important holding.

Full post as published by California Appellate Report on October 13, 2010 (boomark / email).