The In Re Destiny S appellate case was published on October 31, 2012 by the Court of Appeal, Second Appellate District (which is the Court of Appeal for Los Angeles County). The opinion deals with a mother using marijuana and methamphetamine and her child’s protection under Department of Children and Family Services (DCFS). The question is essentially what impact substance abuse has in a child custody setting, in this case a setting before DCFS. The question is whether this case may spill over into family law cases, such that Orange County family law judges may use this decision when they are faced with custody cases that involve substance abuse? Family Court has a different set of rules so, on the surface, the answer is likely no. But whether this is part of a trend regarding drug use and its effect on custody remains to be seen.
Here are the facts of the In Re Destiny S. case.
In September 2011, someone called the DCFS and claimed that the child, Destiny (11 years old) was being sexually abused. The police and DCFS investigated the claim and found the claims to be “unfounded.” However, during the investigation, Destiny’s mother told DCFS that she uses marijuana on a weekly basis and she used to use methamphetamine but had stopped over a year ago. Mother claimed that she never smoked around Destiny. Unfortunately for the mother, a drug test done the same day came back positive for methamphetamine.
Shortly after the results of the test came back, DCFS filed a petition to have Destiny declared a dependent under section 300(b). A detention hearing was held where Destiny was left in her mother’s custody. But the mother was required to undergo weekly random tests. During one of these random tests, the mother again tested positive for both marijuana and methamphetamine and DCFS took Destiny from the mother and placed her with her maternal grandmother. Throughout this entire time Destiny told DCFS that her mother was a loving and attentive mother. She told them that her mother tucks her in bed at night, plays video games with her, goes to her school games, does not punish or abuse her and that she wanted to return to living with her mother.
During a later disposition hearing, the court agreed that Destiny was well-cared for, clean, and well fed. But the Court did not stop there. The court decided that Destiny was at “risk of physical harm” because Destiny was often late to class in the previous year and that her mother was in denial of her drug habit. The court essentially decided that there was no reasonable means to protect Destiny from this “risk” other than removing her and placing her with her maternal grandmother. Mother appealed.
The court of appeal did not agree with the lower court. The court of appeal found that there was no evidence that Destiny was in “serious physical harm” resulting from parental neglect. Here is what the law says:
Section 300(b) says “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, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.”
Here is what the court of appeal looked at in reaching its conclusion:
1. The court of appeal noted and agreed with the lower court that Destiny had not suffered any “serious physical harm or illness.” But the court of appeal disagreed with the lower court’s finding that the mother’s drug use endangered the child’s physical health and safety and placing Destiny at risk of physical harm and danger.
2. The court of appeal disagreed with the lower court and found that the tardiness to school, the previous year, could not support a finding that Destiny was in “substantial risk of physical harm.” This was especially true because the principal of Destiny’s school indicated that this year she was coming to school on time. Interestingly enough, the Department’s report specifically noted that Destiny was not showing any signs of behavioral or academic issues.
3. The court of appeal noted the body of existing law holds that a parent’s drug use, without more, does not bring a child under the jurisdiction of the dependency court. DCFS, however was adamant that Destiny’s statement that she has never seen her mother do drugs but sometimes can smell it was evidence that her mother has failed to protect her from the dangers of secondhand smoke. The court of appeal did not agree and you could say laughed at the Department’s reasoning. The court of appeal stated: “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 have no legal support for this proposition.”
4. DCFS finally argues that based on section 300.2 “a home environment free from the negative effects of substance abuse is a necessary condition for the safety , protection and physical and emotional well-being of the child.” The court of appeal maintained the “negative effects” referenced in section 300.2 must be likely to result in serious physical harm and there is not such finding here.
Here is the moral of the case…drug usage is not an end-all be-all to losing custody of your child. There has to be “substantial risk of physical harm” to the child. Luckily this case had a positive outcome as it forced the mother to stop using drugs as she had tested negative for three months prior to the hearing at the lower court. But bottom line is that a higher showing is needed and for a child to fall under the jurisdiction of DCFS as it needs to be shown that the parent’s behavior exposes a child to substantial risk of serious physical harm or illness to a child.
If you have a family law or divorce that involves issues of substance abuse, contact our experienced child custody attorneys for help. We are available for a an initial consultation.