In re Drake M. Appellate Case

In re Drake M. is a very recent case (decided on December 5, 2012) where the Second Appellate District (hearing Los Angeles appeals) grappled with the issue of a child’s dependency status and a parents’ drug use. We decided to write about Drake not because we believe it will have a direct impact on family law decisions but because we found the facts and the court’s analysis interesting on the issue of substance use versus substance abuse and we thought those of you who read this blog would do as well.

The facts of In re: Drake M. are as follows.

The child, Drake, was born in August 2010. When Drake was only nine months old, he was referred to the Department of Children and Family Services (“DCFS”). The reason for the referral was Lisa (Drake’s mother) had an extensive drug abuse history which resulted in DCFS becoming involved because of another child she had. The other child was not reunified with Lisa because of her drug abuse.

DCFS in this case became involved in May 2011. The social worker investigating Drake observed that Drake and his family lived in a two-bedroom apartment. Drake slept in a crib that was placed in the parents’ bedroom. Drake’s half-sister, Andrea, slept in the other room. There was plenty of food in the refrigerator and all utilities were operational. What complicated the matters though was the fact that Drake’s father, Paul, also used marijuana.

It should be noted that the father did not use marijuana for recreational purposes but for his arthritis.

DCFS reported that Lisa and Paul smoke marijuana and they did so in the garage. When Lisa and Paul smoked marijuana, Andrea (Paul’s adult child) watched Drake. Notably, the DCFS report stated that there was no history of domestic violence between Lisa and Paul and Drake was “clean and without marks or bruises.” The report also mentioned that Drake “‘appeared to be reaching developmental milestones.'” The report did, however, note that Drake was about three months behind in his immunization.

DCFS interviewed the father too. During the interview, the father stated that he uses marijuana three times a week for arthritis and pain in his body. Father denied any prior involvement with DCFS, mental illness or criminal history. He also made it very clear that he would do anything possible to prevent removal of Drake, including random drug testing.

Mother also agreed to a safety plan, supervised by father’s mother, to make sure that mother and father would not be alone with Drake when they were under influence. Problems, however, arose when father’s mother had to leave California because of an emergency and could not take part in the plan anymore. Immediately after this DCFS filed a petition for the removal of Drake.

DCFS claimed that the father’s drug use jeopardized Drake’s physical health, safety and well being and “place[d] the child at risk of physical harm. The report also noted that mother had a long history of mental and emotional problems and had been diagnosed as bipolar and occasionally failed to take her psychotropic medications. All of these factors compounded by the mother’s drug use, placed Drake at high risk of harm.

A detention hearing was held. At the hearing, the trial court found that DCFS had made a prime facie case for Drake falling under the jurisdiction of the DCFS. Interestingly enough, the minute order issued by the trial court specified findings were made against the “MOTHER ONLY.” The trial court ordered the child to be placed with father. The trial court specifically noted the following:

1. Father was Drake’s presumed father;
2. Ordered the mother to leave the family home; and
3. Ordered monitored visitations for mother, random drug testing and drug abuse counseling and parenting courses for the mother; and
4. Ordered “family maintenance services” for the father in addition to weekly random drug testing.

A follow-up adjudication/disposition hearing was held in October 2011. During this hearing, the father testified that he has had a steady job as a cement mason. However, his job required him to spend 3 hours a day on his knees. Years ago doctors had told him that he had the knees of an old man and many times he had to walk with the help of a cane.

He testified that he had received a medical recommendation for marijuana in February 2011 because of his pain and that he never smoked in front of Drake. The marijuana was always kept in a “locked” tool box in the garage and completely out of the reach of Drake. He testified that he smoked approximately four or five times a day per week and when he does smoke he does so in the beginning of the day or around lunchtime. He also argued that at least four hours passes before he sees Drake.

DCFS used father’s testimony to argue that when the father is with Drake, he is still under the influence of marijuana because its effect “does not wear off in four hours.” The trial court changed its prior position and found that the “amended allegations” against the father were true and ordered Drake to be placed with father under DCFS supervision. The mother was allowed to stay in the home so long as she submitted to weekly random drug testing with clean results. The father was also ordered to avoid being under the influence when he was caring for Drake, submit to random drug testing and attending counseling and parenting courses.

The father filed an appeal.

The father’s main contention in his appeal was that DCFS did not present sufficient evidence to the trial court to support a finding that his conduct caused Drake a “substantial risk of suffering and serious physical harm or illness.

DCFS argued to the court of appeal that the trial court’s ruling should not be reversed because the “unchallenged findings as to mother” was sufficient to support dependency jurisdiction which essentially meant removal of Drake. The court of appeal did not agree.

With respect to the father’s argument, the court of appeal agreed with him that there was not sufficient evidence supporting the trial court’s finding that Drake has suffered or was at a substantial risk of suffering serious physical harm because of father’s conduct.

The court of appeal noted that in order to uphold the trial court’s ruling, DCFS must have submitted enough evidence showing that per Section 300(b), Drake has suffered or there is a substantial risk he will suffer serious physical harm or illness because of the father’s inability to provide regular care or to adequately supervise and protect Drake. It should be mentioned that DCFS agreed that Drake had not suffered serious physical harm or illness. So the question was whether he was at risk of suffering serious physical harm or illness later.

The evidence that DCFS offered to support its position were:

1. Father tested positive for marijuana during the dependency proceeding;
2. Father conceded to smoking marijuana 4 or fives a week; and
3. Father had picked up Drake or took care of him alone about four hours after using marijuana.

The court of appeal simply did not agree with the trial court regarding the adequacy or sufficiency of the evidence that DCFS submitted.

In reaching its conclusion, the court of appeal made a very interesting distinction between “substance use” and “substance abuse.” The court of appeal specifically stated that the language of Section 300 deals with a “finding that the parent at issue is a substance abuser.” The court of appeal specifically referred to a prior opinion it had issued in In re: Alexis (2009) 171 Cal.App.4th 451 at 453 that “We have previously stated that without more, the mere usage of drugs by a parent is not a sufficient basis on which dependency jurisdiction can be found.” The court further went on to recite its ruling from the In re Destiny (2012) 210 Cal.App.4th 999 that a parent’s mere usage of marijuana, alcohol or even hard drugs, is not enough to bring a child under the dependency jurisdiction.

There has to be a showing of “drug abuse.”

By relying on a prior court of appeal’s decision in Jennifer v. Superior Court, (2004) 117 Cal.App.4th 1322 a finding of substance “abuse”, for purposes of section 300, is found when there is sufficient evidence to show a medical professional has diagnosed the parent or guardian a current substance abuser or show that the parent or guardian has a current drug abuse problem per DSM-IV-TR.

After a lengthy analysis of application of these standards, the court of appeal found that:

1. There was no evidence that the father suffered from any recurrent substance related problems;
2. There was no evidence that the father drove under the influence;
3. There was no evidence that the father was under the influence when picking up Drake;
4. There was no evidence that four hours after usage he was still under the influence of marijuana
5. There was no evidence that the father had a substance abuse problem, and
6. There was no evidence that the father failed or could not take care, protect or supervise Drake.

The court of appeal in fact noted that the evidence that was presented supported the contrary. More specifically, the court of appeal noted that Drake appeared clean and well cared for. Father was employed for years and there was family support for Drake.

The court of appeal noted that was no evidence of “a specific, defined risk of harm” to Drake that emanated from the father’s use of medical marijuana.

The court specifically said without more evidence, the harm is nothing more than speculation The court of appeal very clearly stated that “the record was entirely void of evidence supporting a finding of jurisdiction under section 300, subdivision (b), based on father’s conduct and will reverse judgment in part as a result.

The court of appeal also agreed with the father that the trial court had abused its discretion in ordering the father to attend parenting courses. The court of appeal agreed that the the ruling was designed to eliminate mother’s conduct and not the father’s.

If you have a child custody case that involves substance use or abuse, contact our experienced family law lawyers for an initial consultation. In the meantime, consider reading our comprehensive page on California child custody laws. It will help you understand  how custody issues are handled by family law judges.