When Should a Child Be Taken From a Home?

It seemed too outrageous to be true: Orange County’s Social Services Agency had taken a 4-year-old boy from his parents simply because their house was too messy, and an appeals court--to remedy the appalling error--was returning the child to his parents.

In reversing a lower court decision, the Fourth District Court of Appeal in Santa Ana said in October that “an exposed light socket” and other “trivial” housekeeping deficiencies were not enough to remove the child from his home.

Throughout Southern California, incredulous parents--at work, at home and on radio talk shows--criticized Social Services’ decision to remove the child and wondered aloud what would happen if social workers ever visited their homes and judged their housekeeping abilities.

But the case of Susan and Stephen Elder and their son wasn’t that simple. Interviews with people involved in the case offer a glimpse into the dilemma that those in the social welfare system face when trying to protect children--although families, and sometimes the courts, dispute their tactics and question their motives.

“It’s really an issue of how far does a government program go in taking over the parenting role,” said Larry Leaman, director of the Social Services Agency. “When do you get to the point of saying that the situation requires removing this kid and maybe finding a better parent?”

Photographs taken by the Huntington Beach Police Department show that the Elders’ house at one time contained piles of trash, clothes and garbage in every room. Rotted food encrusted the kitchen stove and lined the kitchen counters. Human feces were smeared on the kitchen floor and in the bathroom, which also was filled with trash. The walls were black with grime, and one storeroom was so full of garbage that the door had to be forced open. Prescription drugs were strewn on the floor.

Other conditions exacerbated the Social Services Agency’s worries: According to court papers, Susan Elder is slightly developmentally disabled and Stephen Elder cannot find regular work because of his criminal record. Also, their son might be mildly autistic, requiring a high level of attention.

The Elders maintain they are capable of raising the boy, and with the help of volunteers the house has been cleaned. But social workers and others associated with the case continue to mull its reverberations.

In an unprecedented move to defend itself from the onslaught of criticism, the Social Services Agency last month petitioned the Juvenile Court to be allowed to release case documents of its services to the Elders, arguing that the public had been misled about its procedures. Such information generally is sealed by the courts because it involves minors.

Juvenile Court Judge Frank Fasil determined that the agency would violate state law if it released the information, but said that Leaman could expand on what already had been publicized or had been obtained from the courts or police.

One of the most important details to emerge is that Social Services had been concerned about the welfare of the Elders’ son since 1992, when it opened a case on the family after receiving reports from residents that the boy was in danger because of the conditions in the house. The agency then invited the couple to participate in voluntary counseling and other programs, Leaman said, an effort that was to no avail.

Events reached a turning point in July 1994, when Huntington Beach police responded to a domestic dispute call from Susan Elder. The dispute turned out to be minor, but the officer who responded, Det. Tom Gilligan, said the house itself was horrifying.

“In all my time with the department I have never removed a child from his home,” Gilligan, a 20-year veteran of the department, said in a recent interview. “But there was never a question in my mind that I was taking that little boy with me when I left.”

As a result of the police visit, the parents were convicted of misdemeanor child abuse and were sentenced to complete various counseling programs, police said.

Shortly after the police visit, Social Services returned the child, using the specter of his permanent removal to spur the couple into making improvements. They also obtained a court order to work with the family. The Juvenile Court also required the Elders to address 14 areas of improvement on issues ranging from domestic violence and parenting skills to substance abuse.

The agency decided the pair were not making enough progress and removed the child in April 1995.

Juvenile Court Judge Gary G. Bischoff agreed with the agency’s decision, as did police and attorneys for the child. The boy was made a ward of the court and placed in a foster home.

But six months later, the Fourth District Court of Appeal overturned the decision.

“We are not unsympathetic to the agency’s concerns. When in doubt they must err on the side of a child’s physical safety,” the appeals court decision says. But neither the condition of the parents nor the condition of the house met the state standard of “clear and convincing evidence of either substantial danger to physical health or that the minor is suffering severe emotional damage.”

The appeals court also took the agency to task for some of the examples of the Elders’ bad housekeeping--such as a faulty lamp socketthat Social Services had included in its presentation.

“The specific hazards which the Social Service Agency identified in April, 1995, and which led to [the child’s] removal are trivial,” the court wrote.

The court, however, cited none of the conditions recorded over a three-year period that had alarmed social workers, police and the Juvenile Court--and which also had been submitted for review.

Why did the appeals court, police and Social Services apparently see the case so differently?

One reason is that while the courts looked at the condition of the house at the time the child was removed, the agency weighed its entire relationship with the Elders.

“What we saw was a long-term pattern of services offered by multiple agencies and thousands of dollars of taxpayers’ money being spent to help people who had resisted all efforts to help them,” Leaman said.

In hindsight, Leaman said, one of the agency’s missteps might have been to rely on the Elders’ voluntary compliance with counseling when the boy’s case was opened in 1992. By leaving the boy in the house for months while offering the Elders its services, and then returning him after police removed him in July 1994, the agency weakened its argument that the boy was in imminent danger, Leaman said.

Now, he said, the agency is left to wonder how it can take custody of a child before any harm is done and yet have strong, court-worthy evidence of harm being done to the child.

Court-appointed attorneys for the Elders’ son had supported the boy’s removal from the home and fought the parents’ appeal to have him returned.

“In my view, the facts in the aggregate presented a lot more than a messy home,” said Harold F. La Flamme, whose firm represented the child.

But attorney John Dodd, who won the Elders’ appeal, says the reason the Juvenile Court ruling was overturned is simple: Social Services employees, he said, had their minds made up about the couple and refused to acknowledge when the Elders began to improve. The couple’s progress, however, was clear to the appeals court.

“All [the agency] wants to do is talk about all the details when the child was first taken away by the police, and that was not the situation in April when he was taken away again,” Dodd said. “They want to confuse the issue and try and spruce up their image by talking about what happened at the beginning, because they’re sore losers.

“They made a snap judgment at the beginning. . . . And you know, maybe they’re right that the vast majority of people in my clients’ position will never change, but my clients did change and Social Services couldn’t see that.”

Dodd arranged a cleanup of the house in November with about 15 volunteers, including members of a high school service club.

In a four-hour visit, 10 students, lawyers and paralegals, along with Susan Elder, hosed down walls and scrubbed the cabinets, counters and floors. The students painted a bedroom, laughing and talking while rolling a creamy white covering over grit, grime and dozens of little spiders.

While they worked, television and newspaper reporters toured the house and talked to Susan Elder.

“The first time [the police] took him away, I could understand that because it really wasn’t fit for a child to live in,” Susan Elder said. “But the second time, when Social Services took him, I just don’t understand that.

“Also, I’m not retarded like they said I was,” she said. “That wasn’t fair, because I’m a lot more capable than they gave me credit for.”

Dodd had called several stores for contributions to the cleanup--one delivered a bed for the boy, who had no discernible place in the house to sleep. The students bought the family a new vacuum cleaner, and a restaurant donated pizza for the cleanup event. With each gift, Susan Elder cried.

When the afternoon was over, she hugged everyone goodbye, even the reporters.

In the meantime, although he is now at home, the Elders’ son still is a ward of the court. Whether he remains so will be decided at a review hearing in April. Given the appeals court decision, Leaman said, it is unlikely the agency will fight to keep him under court authority.

“It has in the past been a role for government to say we’re going to offer you help, and if you don’t take the help we’ll remove the child,” Leaman said. “Now this decision has changed that. It’s just that kind of social dilemma.

“What does our society want to do with the kind of people that have children and are basically not mean-spirited, not torturing their kids--they’re . . . basically incapable of caring for their child without help?”