Opinion

Couple in 50s too old for kids? COMMENTARY

Lisa Falkenberg: Judge biased against 50-something grandparents?

Yolanda and Arnold Del Bosque have taken care of their grandchildren since infancy. Yolanda and Arnold Del Bosque have taken care of their grandchildren since infancy. Photo: JOHNNY HANSON, CHRONICLE Photo: JOHNNY HANSON, CHRONICLE Image 1 of / 1 Caption Close Couple in 50s too old for kids? 1 / 1 Back to Gallery

LA PORTE — The children were eating hamburgers at a kitchen table when the state came to take them away.

Their grandmother, a cafeteria lunch lady who bakes the kolaches at La Porte Elementary, carefully wrapped up the unfinished meals and placed them in the freezer for when the children return.

If Juvenile Court Judge John Phillips has his way, that day will never come.

Yolanda and Arnold Del Bosque have taken care of their grandchildren since infancy, until a few weeks ago when Phillips ordered the 1- and 2-year-olds removed from the home and placed into foster care, where they could be adopted out to strangers.

The judge's ruling, which Child Protective Services argued against, wasn't prompted by any allegations of abuse or neglect, but apparently in large part by his belief that the Del Bosques, who are in their 50s, are too old to be parents.

At a hearing last month, according to a transcript, Phillips said the boys, Rafael and Luis Sierra, would need guidance in their late teens and 20s "and the stark reality is there's a very good chance" their grandparents "will be dead at that time."

The words stung Yolanda, 59, and her husband of 19 years, Arnold, a 52-year-old retired truck driver, as they listened in court.

"I don't know when the judge became God," a tearful Arnold told me last week as he sat at a glass kitchen table smothered with legal bills and court papers aimed at fighting the judge's ruling. "I didn't know there was an age limit on being a grandpa or grandma."

Like the uneaten hamburgers in the freezer, the Del Bosques' lives are frozen in time. The children's rooms in the couple's tidy trailer home remain untouched, still stocked with storybooks, Barney tapes, a Fisher Price potty. Arnold refuses to remove the car seat from the back of his '92 F-150.

Beyond childhood

The Del Bosques' prospects for getting the kids back aren't rosy. Although they threw a barbecue benefit to pay for an attorney, the money quickly ran out — but not before Judge Phillips blocked the attorney's attempts to intervene in the case and request a jury trial, despite the fact that both requests were timely filed.

In the transcript of the Aug. 14 hearing, Phillips doesn't discuss why he denied the request. But he went on at length about his feelings on grandparents being parents.

The judge argued that "the best interest of the child" doesn't just cover the period of childhood, but spans an entire lifetime, until death. Maybe even farther.

It wasn't just the welfare of these two boys he was looking out for, Phillips explained, but that of the unborn children they may have someday. Making Yolanda and Arnold parents would "effectively eliminate a possibility that the children of these children will have grandparents, and I think that by itself is unfair."

The judge concluded: "I wouldn't be so drastic to accuse the grandparents of being selfish because I think that they love these two children, but now you know how I feel. And I'm not in a position nor am I willing to debate that issue because it's something that I've thought about for a long time."

Old drug problem

I tried to interview the judge for this column, but his court coordinator Michael Millard said Phillips wouldn't talk because the case is pending. The judge's clerk wouldn't let me review the case file. A final trial is set for today that could lead to the termination of parental rights for the boys' mother and father, Yolanda's son from a previous marriage, because of drug abuse.

Millard indicated that age wasn't the real reason for removing the children from their grandparents' home. "Apparently, there was some additional information that was found out" about the Del Bosques, Millard said.

To be sure, the Del Bosque case, like most CPS cases, is complicated: The couple struggles financially, Arnold Del Bosque is on disability because of his diabetes and, although he has no criminal history, he volunteered to caseworkers early on that he had a drug problem 20 years ago and sold cocaine for a while to support his habit.

But the case got much more complicated after the judge made his feelings known about the grandparents' age.

Changing their tune

Suddenly, the Del Bosques say, court appointees, who had filed glowing reports about their parenting and their "stable, nurturing home" after more than a dozen visits began to change their tune, citing cryptic allegations from drug-using relatives and claims about the couple's health, family life and drug use that were flat wrong.

On Aug. 14, both CPS and court-appointed guardians strongly supported the children staying with their grandparents. But, in a motion to keep the grandparents from intervening a few days later, the children's appointed attorney, Michelle Bush, argued that allowing them to stay with the Del Bosques "would significantly impair" their "physical health and emotional development."

Bush cited "holes in the floor and roach infestations." (I saw neither when I visited.) She listed among Arnold's "extreme health problems" heart failure and epilepsy, neither of which he says he's ever had. She said the family was too poor and had "minimal to no family support," even though the Del Bosques have a large extended family. And, somehow, Arnold's admission of a drug problem "20 years ago" was represented in Bush's report as using and/or dealing "for twenty years."

A couple of days ago, even CPS, which had argued against the removal of the children, called me to stay it had changed its recommendation, citing "additional information" from various sources.

It's possible that today's hearing could reveal some validity in these mysterious allegations. I'll be there to see, as will Barbara Stalder, an attorney with the University of Houston's legal aid clinic, who agreed this week to take the Del Bosques' case.

"When you have glowing reports about these individuals, who they've had more than a year to evaluate, and then at the eleventh hour, you've got these other allegations being thrown in there, I'm sorry, it's a smokescreen," she told me.

It's still unclear if the judge in any way pressured his appointees and others involved in the case to drop their support of the Del Bosques or their opposition of his removal of the children. But the judge's bias against grandparents being parents seems clear.

And that flawed philosophy shouldn't be allowed to break apart the only real home these boys have known.

lisa.falkenberg@chron.com