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Parent’s Mere Use of Alcohol Absent Abuse Did Not Justify Order for Abstinence—C.A.
By a MetNews Staff Writer
Evidence showing no more than that a presumed father isn’t a teetotaler did not justify an order in a child dependency case that he abstain from the use of alcohol, the Fifth District Court of Appeal said in an opinion filed yesterday.
The unpublished “By the Court” opinion—by Acting Presiding Justice Kathleen Meehan and Justices Mark W. Snauffer and Thomas DeSantos—reverses an order to a man identified as “P.C.” that was issued by Kern Superior Court Judge Susan M. Gill.
She acted in connection with the removal of an infant, who tested positive for drugs at the time of his birth, from the custody of the mother as well as P.C., the noncustodial presumed father. Reunification services were ordered for both of them.
Judge’s Misapprehension
The judge, in issuing the no-alcohol order, was under the misapprehension that an anonymous report to the Kern County Department of Human Services that P.C. is an alcoholic was substantiated by his having failed to show up for a drug test because he had consumed three beers that day. She had him confused with the father of the infant’s half-sibling.
Yesterday’s opinion declares:
“[T]he juvenile court’s reliance on the three-beers incident was an independent abuse of discretion….Moreover, the juvenile court used the misattributed fact to corroborate the claim made in the anonymous call. Without this corroboration, the juvenile court could not rely solely on the anonymous call to support its finding father abused alcohol.”
The department argued that there was further substantiation, pointing to a 2012 report that P.C., who had three minor children in the household, “drinks and gets drunk in front of the kids daily after he gets home from work.” The allegations were investigated at the time and determined to be unfounded.
Evidentiary Support Lacking
The opinion says:
“We disagree with the department’s premise that any of the evidence supports a finding father ‘abuse[d]’ alcohol. At most, the evidence highlighted by the department supports a finding father used alcohol, but we do not agree it supports a finding he abused it to the extent it would affect Baby Boy G.’s well-being so as to justify the court’s order.”
It adds:
“We note alcohol is a legal substance, and father was a noncustodial, nonoffending parent who provided a negative test for all substances and had no criminal history related to alcohol. We conclude the evidence here cannot substantiate the juvenile court’s finding father abused alcohol; therefore its order that father abstain from and submit to testing for alcohol was an abuse of discretion.”
The case is In re Baby Boy G., F082780.
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