Appeals Court Holds Mother’s Admitted Drug Abuse Did Not Justify Dependency Finding as to Child

Monday, August 4, 2014

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Appeals Court Holds Mother’s Admitted Drug Abuse Did Not Justify Dependency Finding as to Child

By a MetNews Staff Writer

The Court of Appeal for this district on Friday reversed a juvenile court’s finding that a mother’s drug abuse rendered her incapable of providing her teenage daughter with regular care and supervision.

Div. Eight found there was not substantial evidence indicating that drug abuse by a mother, R.C., endangers her daughter Rebecca’s health and safety, or placed Rebecca at risk of physical harm.

Case social workers visited the home of R.C. and the child’s father, Raymond C., upon referral to the Los Angeles County Department of Children and Family Services. The information given the DCFS in August 2013 alleged that R.C. and her husband used marijuana and methamphetamine in Rebecca’s presence, and that there were guns and drug sales in the family home, and that “everyone” who lived in the home was using drugs.

There was also a former filing with the DCFS involving a dependency action involving Rebecca’s older siblings.

The initial visit disclosed no evidence of guns or drugs; however, R.C. tested positive for methamphetamine, amphetamine, and marijuana. R.C. admitted that she used methamphetamine days earlier, and stated that she “relapsed” because she was under a lot of stress, due to her adult son having been arrested for murder, her husband cheating on her, resulting in their separation, and having personal financial problems.

R.C. admitted that she was a user of illicit drug and consented to Rebecca’s removal from her custody. Since the removal, R.C. had taken nine drug tests, and had tested positive for marijuana eight times.

Los Angeles Superior Court Judge Annabelle Cortez sustained allegations against R.C., and declared Rebecca a dependent child of the court pursuant to Welfare & Institutions Code §300. However, Cortez ordered Rebecca placed in the custody of her parents, and ordered family maintenance services for R.C. to include participation in a drug rehabilitation program, random drug testing, a 12-step program, and a referral to family preservation services.

She also ordered R.C. not to smoke marijuana in Rebecca’s presence.

In writing for a unanimous panel, Presiding Justice Tricia Bigelow found unpersuasive R.C.’s argument that there was not evidence of “substance abuse” other than “situational” use of drugs, but did agree with the appellant that there was a lack of evidence to indicate the substance abuse “has caused or is causing a substantial risk of harm to Rebecca.”

Bigelow noted that Rebecca had denied any physical or emotional abuse, did not show any signs of physical abuse, and was not fearful of R.C.; she was up-to-date on medical and dental check-ups; R.C. had enrolled her in special education during the fourth grade, and R.C. regularly attended individual education plan meetings on behalf of Rebecca. When confronted with her positive drug test, R.C. had committed herself to a program.

Bigelow found the DCFS’s arguments unconvincing, declaring:

“DCFS essentially argues that, when a parent engages in substance abuse, dependency court jurisdiction is proper. This is not what the dependency law provides. Further, if DCFS’s position were accepted, it would essentially mean that physical harm to a child is presumed from a parent’s substance abuse under the dependency statutes, and that it is a parent’s burden to prove a negative, i.e., the absence of harm.”

The case is In re Rebecca C., B253065.

Dana Point attorney Daniel G. Rooney represented R.C., under appointment by the Court of Appeal. Arguing for the DCFS was Deputy County Counsel Denise M. Hippach.