Drug use is NOT abuse/neglect, says CA courts

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Eljay
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Drug use is NOT abuse/neglect, says CA courts

Postby Eljay » Mon Nov 12, 2012 9:44 am

http://blogs.findlaw.com/california_cas ... .html#more

Juvenile Court Needs More than Drug Use to Take Child from Mom
By Robyn Hagan Cain on November 1, 2012 3:21 PM | No TrackBacks
Eleven-year-old Destiny and her mother came to the attention of the Department of Children and Family Services in September 2011 when someone called the Department and alleged that Destiny was being sexually abused by an unknown perpetrator. The local police and the DCFS concluded after an investigation that the allegation was "unfounded."

In the course of that investigation, however, Destiny's mother admitted that she had a history of methamphetamine and marijuana use. She told the DCFS worker that she smokes marijuana on a weekly basis, but not around Destiny. She also told the worker that she had stopped using methamphetamine "over a year ago" but a drug test the same day came back positive.

DCFS filed a petition to have Destiny declared a dependent of the court under Welfare and Institutions Code 300(b), based on her mother's drug use. At the detention hearing the court left Destiny with her mother, but ordered her mother to submit to weekly random drug tests. When the mother tested positive for methamphetamine and marijuana, the court placed Destiny with her grandmother.

The court held jurisdiction and disposition hearings in January 2012. The uncontradicted evidence at the hearings showed that Destiny was a healthy, happy preteen. She told the DCFS worker that her mother takes good care of her, denied ever being physically punished or abused, and said that she wanted to go back to her mother.

Though the court concluded that Destiny was "well-cared for ... clean [and] well-fed," it decided that she was at risk of serious physical harm because she had often been late to class in the previous school year and her mother was in denial as to her drug habit. The court found by clear and convincing evidence that Destiny would be at risk of substantial physical harm if returned to Mother, and there were no reasonable means to protect her other than removing her.

The appellate court reversed that decision on four grounds:

Under section 300(b), the juvenile court may assert jurisdiction over a child when the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness." Here, the court did not find that Destiny had suffered serious physical harm or illness, but that her mother's substance abuse endangered placed Destiny at risk of harm and danger. The record did not reflect such risk.
The court failed to see how past tardiness to school (read: not ongoing) could support a finding that there is a present "substantial risk" of serious physical harm.
Marijuana use or hard drug use -- without more -- doesn't bring a minor within the jurisdiction of the dependency court.
While a home should be free of the negative effects of substance abuse, there were no negative effects in this case that were likely to result in serious physical harm.



The ruling:
http://www.courts.ca.gov/opinions/documents/B239393.PDF

Filed 10/31/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re DESTINY S., a Person Coming Under
the Juvenile Court Law.
B239393
(Los Angeles County
Super. Ct. No. CK90236)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ROSEMARIE H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn
Martinez, Juvenile Court Referee. Reversed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
______________________________________2
Rosemarie H., Mother, appeals from orders of the juvenile court declaring her
11-year-old daughter, Destiny S., a dependent of the court under Welfare and Institutions
Code section 300, subdivision (b),
1
and placing her with her maternal grandmother.
There being no evidence that Destiny is under a current risk of serious physical harm,
the orders are reversed.
FACTS AND PROCEEDINGS BELOW
Destiny, age 11, and her mother came to the attention of the Department of
Children and Family Services in September 2011 when someone called the Department
and “alleged sexual abuse of [Destiny] by an unknown perpetrator.” The local police and
the DCFS investigated this allegation and concluded that it was “unfounded.” In the
course of the DCFS investigation, however, Mother admitted that she had a history of
using methamphetamine and marijuana. She told the DCFS worker that she smokes
marijuana on a weekly basis, but not around Destiny. She also told the worker that she
had stopped using methamphetamine “over a year ago” but a drug test the same day came
back positive.
In October 2011, the DCFS filed a petition to have Destiny declared a dependent
of the court under section 300, subdivision (b) based on Mother‟s drug use. At the
detention hearing the court left Destiny in Mother‟s custody and ordered Mother to
submit to weekly random drug tests. When Mother tested positive for methamphetamine
and marijuana the court took Destiny from Mother‟s custody and placed her with her
maternal grandmother where she remained at the time of the jurisdiction and disposition
hearings.
The court held jurisdiction and disposition hearings in January 2012. The
uncontradicted evidence at the hearings showed that Destiny was a healthy, happy
preteen. She told the DCFS worker that Mother “takes good care of her,” tucks her in
bed at night, plays video games with her and attends her volleyball games. She denied

1
All statutory references are to the Welfare and Institutions Code.3
ever being physically punished or abused. She told the DCFS worker: “I want to go
back with my mom.” The principal of Destiny‟s school told the DCFS worker that she
had “„no concerns‟” about Destiny; that she has no discipline issues and attends school
regularly. Destiny‟s tardiness to school in the previous year had not reoccurred this year.
It was also undisputed that Mother had submitted to five drug tests between
November 2011 and January 2012. All were negative.
After considering the foregoing evidence the court concluded that although
Destiny is “well-cared for . . . clean [and] well-fed” she was at risk of serious physical
harm because she had often been late to class in the previous school year and her mother
was in denial as to her drug habit. The court found by clear and convincing evidence that
Destiny would be at risk of substantial physical harm if returned to Mother and there
were no reasonable means to protect her other than removing her from Mother‟s custody.
Destiny‟s placement continued with her maternal grandmother.
Mother filed a timely appeal.
2
DISCUSSION
The Evidence Does Not Support The Court’s Finding Of A Risk Of Serious
Physical Harm Resulting From Parental Neglect
Under section 300, subdivision (b) the juvenile court may assert jurisdiction over a
child when “[t]he child has suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or inability of his or her parent
or guardian to adequately supervise or protect the child[.] . . . The child shall continue to
be a dependent child pursuant to this subdivision only so long as is necessary to protect
the child from risk of suffering serious physical harm or illness.”
Here, the court did not find that Destiny had suffered “serious physical harm or
illness” but did find that “[Mother‟s] substance abuse endangers the child‟s physical
health and safety, and places the child at risk of physical harm . . . and danger.”
3

2
Destiny‟s father is not a party to this appeal.4
The record lacks any evidence that Destiny was at risk of suffering physical harm
as the result of Mother‟s use of illegal drugs.
A. Tardiness To School
The court found that “when one is using drugs, one often has a difficult time being
awake” and concluded, therefore, that Mother‟s drug use “could” have been the cause of
Destiny being late to class the previous school year. Assuming that this conclusion is
supported by the court‟s “20 years on the bench, [and] training and experience,” the
conclusion is irrelevant to dependency jurisdiction under section 300, subdivision (b) or
any other subdivision of section 300. Although missing school is a “serious” problem,
“that is not the same as saying the failure to attend school created a „substantial risk‟ of
suffering „serious physical harm or illness.” (In re Janet T. (2001) 93 Cal.App.4th 377,
388-389; italics in original.) Furthermore, the undisputed facts show that Destiny‟s
frequent tardiness occurred in the previous school year. The principal of Destiny‟s
school told the DCFS worker that “„so far [in the current year] she is coming on time.‟”
The Department‟s report stated that “Destiny is not exhibiting any behavioral or
academic issues.” Jurisdiction under section 300, subdivision (b) can exist “only so long
as is necessary to protect the child from risk of suffering serious physical harm or
illness.” We fail to see how tardiness to school in the past can support a finding that
there is a present “substantial risk” of suffering serious physical harm.

3
The court struck the allegation that Destiny was at risk of physical “damage.” 5
B. Use Of Marijuana And Hard Drugs
It is undisputed that a parent‟s use of marijuana “without more,” does not bring
a minor within the jurisdiction of the dependency court. (In re Alexis E. (2009)
171 Cal.App.4th 438, 453; italics in original.) The same is true with respect to the use
of hard drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 817, 825-826 [mother‟s
cocaine use standing alone was not sufficient basis or jurisdiction under section 300,
subdivision (b)]; and see In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [father‟s
alcoholism alone did not support jurisdiction under section 300, subdivision (b)].)
Instead, the DCFS had to present evidence of a specific, non-speculative and substantial
risk to Destiny of serious physical harm. (In re David M. (2005) 134 Cal.App.4th
822, 830 [jurisdiction under section 300, subdivision (b), reversed where mother had
continuing substance abuse problem, but there was no evidence of a specific, defined risk
of harm from mother‟s substance abuse].)
DCFS contends it produced “more” than just evidence of Mother‟s drug use.
It points to Destiny‟s statement to a DCFS worker that although she has never seen
“„the other thing that mother smokes‟” sometimes she can smell it “„but it‟s not very
much.‟”
4
Based on this ambiguous statement the DCFS proclaims it has produced “direct
evidence mother failed to protect Destiny from the negative effects of secondhand
smoke.” We disagree. No evidence suggested that Destiny was at risk of imminent
physical harm caused by the second-hand smoke from Mother‟s use of marijuana. In any
event, the logical consequence of the Department‟s argument would be to remove minor
children from the homes of all smokers in Los Angeles County—regardless of what they
smoke. We know of no legal support for this proposition.
DCFS next refers us to a report it received in 2002, when Destiny was
one year old, alleging that Mother was using methamphetamine and left Destiny
unattended for long periods of time, did not bathe or feed her and that Destiny drank

4
Presumably the “other thing” was marijuana.6
alcohol that Mother left within her reach. The Department‟s investigation at the time
showed that Destiny was in the care of her paternal grandmother who was willing to care
for her. The referral was closed on the basis that the “situation stabilized.”
5
Evidence of such conduct that may have occurred nine years before the petition
under review was filed cannot support jurisdiction under section 300, subdivision (b),
which requires proof of a current risk to the child. (See discussion, ante, at p. 4.) There
is no evidence in this case that Mother‟s drug use caused her to neglect Destiny. On the
contrary, the undisputed evidence showed that at the time of this petition Destiny‟s home
was “neat and clean,” Destiny had her own bedroom “which was nicely decorated,” no
drug paraphernalia was observed in the home and the refrigerator and cabinets were
stocked with “an adequate amount of food and all of the utilities were in proper
working order.” It was also undisputed that Destiny “has no behavioral or discipline
issues and attends school regularly” and wanted “to go back with [her] mom.” As to the
allegation that Mother left alcohol where one-year-old Destiny could reach it, 11-year-old
Destiny “was old enough to avoid the kinds of physical dangers which make infancy an
inherently hazardous period of life.” (In re Rocco M., supra, 1 Cal.App.4th at p. 825.)
Finally, at the time of the jurisdictional hearing Mother had tested clean for marijuana
and methamphetamine for three months.

5
The DCFS claimed in a report to the court in this case that the above allegations
against Mother were “substantiated” but this appears incorrect because the Department
also states in the same report: “Referral closed as situation stabilized” and stated in a
another report to the court in this case that: “The family has no prior DCFS/Juvenile
Court cases.”7
C. Section 300.2
Finally, the DCFS attempts to justify jurisdiction based on section 300.2 which
states: “The provision of a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and physical and emotional wellbeing of the child.” Section 300, subdivision (b), however, requires a showing of a risk
of serious physical harm resulting from Mother‟s substance abuse. Thus, the “negative
effects” referenced in section 300.2 must be of the sort likely to result in serious physical
harm. No such negative effects have been shown in this case.
DISPOSITION
Because the court lacked jurisdiction over Destiny, its jurisdictional order is
reversed and all subsequent orders are vacated as moot. (In re Maria R. (2010)
185 Cal.App.4th 48, 71.)
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, Acting P.J.
We concur:
CHANEY, J.
JOHNSON, J.
Advice & opinions provided are no substitute for genuine legal assistance. Laws & rules vary by state/jurisdiction so do your homework and get
an education in CPS laws, rules & practices so that you can FIGHT for your children's rights. I am not a lawyer. Your mileage may vary.

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monkette31
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Re: Drug use is NOT abuse/neglect, says CA courts

Postby monkette31 » Sat Dec 08, 2012 2:33 am

You know what? The same lawyer was assigned to me for appeal. She was my magic jack lawyer, the given number for two mos, ha, anyways, I thought that was interesting. I haven't heard what happened with my appeal of Simon yet, funny they split the case in two last December and didn't tell me it was split til May.
I'm not a lawyer but will try and help you any way i can. My postings may seem harsh but they all stem from personal experience with DCFS. I am not a victim and take responsibility for my part in my life, but I will always help ANYONE learn about the corrupt sick system.

pokefire
Posts: 7
Joined: Tue Apr 02, 2013 3:24 am

Re: Drug use is NOT abuse/neglect, says CA courts

Postby pokefire » Sun Aug 04, 2013 11:59 am

10:26 AM 6/24/2013

From nov. of 2012, After Josiah was returned to me I noticed for the first time the negative affects that came from him being in custody of CPS. The first investigator must have agreed cause when she returned him to me 4 days later, she said that the care takers was concerned that he was suffering from being seperated from his dad and should be with me as much as possible. For the next few visit from her, she seen how he was progressing just by being at home. She suggested some of the thing that I should try & get done for them to be satified & close his CPS case, Which I did (ie: file for legal custody, try to get him into early head start program, ect...)
A few month later I received a visit from S.W. Mrs. George she said she was following up on his case. And Said that I was doing an exellent job with him but she wanted him to get examined by a few people cause she was concerned with his development like his speach and to make sure he was up to par with the average kids his age. Even though I knew he was getting better everyday, I was okay with it.
When the people they sent to evaluate jojo came to my home the played with him for about 20 minutes & both of them decided that he didn't need any of the services that george said he needed and they wished me good luck & was on their way.
Mrs. George acted like everything that I was doing was good she said that he's always clean, and looks well fed, the home is alway clean and he has all the things that a kid should have and that she state in her report that there was no reason to be concerned about his health & safety. She asked, where his mom was. I told her that I had been taking him to las colinas every week to see her and see if she was ready to be a positive mother to him. She said she wanted to go talk to her. After she went to see his mom, her whole attitude changed from, jojo couldn't be in a better place to I need to enroll in to several programs offered. And she would bring back on her next visit a case plan to follow.
After several days of trying to do all that the case plan said i had to do I explained to her that there was no drug ed. programs available for men with kids, they only had them for women with kids and could she help me with child care so i could get in a program that she demanded i take. She said that we didn't qualify for any assistance that the county had to offer. So I told her that I was going to the court on 02/28/2013 myself to ask the judge to either order them to let me in the classes for women with kids or modify my sentence in my criminal case from 120 days of drug education. Her response to that was , the court is not going to change for me, but when they did, she took it personal & that same day when I was about to walk to the store with my son, at the end of the driveway, we were met by Mrs George, 2 police officer, & a tall black man.
And said that she had found josiahs dad and there was no need for me to care for him anymore, and snatched him from my arms crying. with a smurk on her face she said there will be a court at 8;30am if you wish to be there.
Even after me showing her first hand how him being seperated from me affects him, she still chose to make up some bullshit about my home being unsafe for him to be in, told a court a bunch of lies about my home being a danger for a child so she could get a warrant to come & get him. All because of a message i left on her answering machine. she let her personal feeling effect her professional position. & should not have the power given to her.
Every since then no one has concidered the damage/truama josiah is going through by the decisions made by CPS. Its more important to them that they make me admit to stuff that im not guilty of, than give what he needs to get through these trouble times. (ie; he was allowed to go with my family as long as they dont let him see the one person that means any thing to him, me)
If there is anyone that can get my case proven un justified & my son home please text me at 6194083156 or email me at [email protected]

wontgiveup
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Re: Drug use is NOT abuse/neglect, says CA courts

Postby wontgiveup » Tue Apr 29, 2014 9:40 pm

I want to apologize for rolling my eyes at other people for having their children taken, I'm so sorry because now I'm the one. I know this post is last year but I'm praying someone is able to read it. Its been two months without my infant daughter Baylee. I wasn't able to take her home from the hospital due to positive toxicology test. She was not effected. I don't have any visitation (the judge never said no visiting). My heart is hurting. My attorney said she 'loves' my social worker and that proves she's not here to help me. I'm 23 years old with no family or even support. 707 843-8843 [email protected]
I've never even given her a bath.

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LindaJM
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Re: Drug use is NOT abuse/neglect, says CA courts

Postby LindaJM » Wed Apr 30, 2014 12:50 pm

Please don't give up. A lot of parents who used drugs were able to get their children back.

If it doesn't say "no visitation" in the court document, then you could file for a "fair hearing" by calling the state department of social services.

Read this: http://fightcps.com/2008/05/12/filing-f ... e-hearing/

Note: do NOT tell the caseworker you're planning to file. They would probably tell you it can't be done. Go straight to the state department of social services.

Read your state's social service laws and regulations to find citations to laws that support your visitation rights.

Another idea: go see your county commissioner to ask for intervention. The commissioner could also be called "County Board of Supervisors" member. They are responsible for everything going on in the county including human services.

I hope this helps.
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Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...

thepenguinpitt
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Joined: Sat Dec 15, 2012 2:10 pm

Re: Drug use is NOT abuse/neglect, says CA courts

Postby thepenguinpitt » Sat May 03, 2014 6:03 pm

I would also like to suggest that you request a copy of the toxicology screeen done by the hospital. I find it very odd that yours came back positive and the baby came back negative. When I had my youngest son we both came back negative until they did a meconium screen, then they said he had minute microscopic traces of THC in his system. Come to find out later that the document with the screening results said the test results are unconfirmed and not to be used for anything other than medical purposes.


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