Blood Is Thicker Than Water

• Publication year: 2019
• Author: The Hon. Robert G. Rassp Los Angeles, California

Blood Is Thicker Than Water

The Hon. Robert G. Rassp Los Angeles, California

Disclaimer: The opinions expressed in this article are those of the author and are not the opinions of the State of California Department of Industrial Relations, the Division of Workers' Compensation, or the Workers' Compensation Appeals Board. This article was originally published in LexisNexis and Vermo. The article is republished with permission from the author.

This article was inspired by a true story that raises issues of public policy, fairness, and equity. It is a tragic story with a bittersweet ending. The story calls for a discussion about a change in the law to correct what may be an inequity. This is especially true since the California Constitution, Article XIV, section 4, mandates that substantial justice occur in every workers' compensation case.

The Facts

Johnny Doe was born on October 17, 2012, in a suburb of the city of Los Angeles. During the first three months of his life, Johnny and his mother, Teri Doe, lived in a residential treatment facility. Thereafter, the child lived with his father, Robert Doe, for about one year. In 2014 the child's biological father,¹ Robert Doe, was incarcerated in the State of California prison system.

On or about August 12, 2015, the County of Los Angeles Department of Children and Family Services (DCFS) initiated in Los Angeles Superior Court a Juvenile Dependency Petition pursuant to Welfare and Institutions Code section 300(b). That section refers to an unfit parent that requires County intervention. It was alleged in that Petition that the minor child's biological mother, Teri Doe, was unfit due to chronic drug use. After 2015 the mother disappeared from this picture and fell out of this story due to chronic methamphetamine abuse.

On or about October 8, 2015, a First Amended Petition was filed with the Superior Court under the same case number and alleged that the minor child's father,

Robert Doe, has a longstanding history of unresolved illicit substance abuse and related convictions for which the father is currently incarcerated and unable to arrange for care of the child. The father's convictions include battery, possession of unlawful paraphernalia, theft, grand theft, and felony burglary. The father's criminal history and unresolved illicit substance abuse history endanger the child's physical safety and emotional well-being and place the child at risk of serious physical and emotional harm.

Despite this allegation in October 2015, the child had lived with his father from the age of three months until his father's incarceration in 2014. On October 14, 2015, a hearing was held in juvenile court on the DCFS Petition. Robert was allowed to make a personal appearance at that hearing, and pursuant to California Welfare and Institutions Code section 366.26(f)(2), the Superior Court appointed legal counsel for Robert from the Public Defender's office. The court ordered Robert to stay in local custody until October 16, 2015, in order to be interviewed by DCFS personnel. The matter was continued to November 20, 2015, Robert's appearance at the next hearing was waived, and his counsel was allowed to make an offer of proof of Robert's testimony at the next hearing. Robert was returned to state prison in northern California.

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At the Superior Court hearing on November 20, 2015, Robert's mother, Jane Doe, appeared, and the court appointed her as the child's guardian ad litem and further granted her temporary legal and physical custody since she is the child's paternal grandmother. On February 23, 2017, the Superior Court judge terminated Robert and Teri's parental rights as follows:

The court finds that it will be detrimental for minor(s) to be returned to the parents and parental rights are terminated. The minor is declared free from the custody and control of his mother, Teri Doe, and father,...Robert Doe, and as to any and all other person or persons presently known or unknown who shall hereafter claim or allege maternity or paternity of the minor, and pursuant to WIC 366.26, the care, custody and control of the minor is transferred to DCFS for the purposes of adoption planning and placement. The court finds by clear and convincing evidence that it is likely that the Minor will be adopted.

Robert Doe was represented by legal counsel at this hearing. This Superior Court order became final by operation of law on or about April 24, 2017, and pursuant to California Rules of Court section 8.406. This court order means that the child became the ward of the State of California and is deemed eligible for adoption.

On May 24, 2017, Robert Doe died while performing his duties as an inmate firefighter when a 160-foot tree fell on him in Klamath National Forest. He had been scheduled to be released from state prison in October 2017. Robert Doe is now referred to as the "Decedent."

From 2014 until the Decedent's death, the minor child Johnny Doe did not live with the Decedent since the Decedent was incarcerated in two different state prisons during that time. The Decedent's mother, Jane Doe, provided the food, clothing, and shelter for the minor child from August 2015 through the date of the Decedent's death, May 24, 2017. The prison system allowed family visits once every six months, at which time the minor child and paternal grandmother would pay the Decedent overnight visits at the prison for a full weekend. The prison system also allowed one-day visits every other week that were not overnight.

During the prison visits, the Decedent would buy some toys for the child and pay for some meals from his commissary account. He also received payment for work that totaled about $350.00² that was used for the benefit of the minor child. At the time of the Decedent's death, johnny Doe was four years old.

At that time the Decedent's mother, Jane Doe, paid for the child's food, clothing, and shelter using her earnings as a biology schoolteacher and...