Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding

November 29, 2012
By Thomas M. Huguenor on November 29, 2012 8:40 PM |

933457_17536502.jpgA mother appealed a juvenile court's declaration of dependency over her eleven year-old daughter in In re Destiny S. The court had taken her daughter from her custody and placed her with a family member. It entered an order finding that the daughter was at risk of physical harm, citing the daughter's school tardiness during the previous year and the mother's history of drug use. The appellate court reversed the trial court's ruling, finding that the evidence did not support any risk of "serious physical harm."

The Department of Children and Family Services (DCFS) received a report in September 2011 that an unknown individual was sexually abusing eleven year-old Destiny S. After an investigation, DFCS determined that the allegation was "unfounded." Destiny's mother, Rosemarie H., admitted to DFCS investigators that she smoked marijuana every week, and that she had previously used methamphetamine. DFCS petitioned the court to declare Destiny a dependent because of Rosemarie's drug use. It cited § 300(b) of the California Welfare and Institutions Code, which gives the juvenile court jurisdiction over a child when the court finds "substantial risk" of "physical harm or illness" because a parent is unwilling or unable to provide proper supervision. The court placed Destiny in the custody of her maternal grandmother when her mother tested positive for methamphetamine use.

Evidence presented at a hearing in January 2012, which was not contradicted, showed that Destiny was a "healthy, happy preteen," that she had a good relationship with her mother, and that her mother took good care of her. Destiny stated that she wanted to live with her mother. The principal of Destiny's school said that she attended school and had no discipline problems, and that the tardiness problems of the previous year had not continued. The mother had three months of negative drug tests. The juvenile court nevertheless concluded that Destiny faced the risk of substantial physical harm in her mother's custody, based on her history of school tardiness and her mother's drug use.

The appellate court found that the evidence presented at the hearing did not support the juvenile court’s findings. In regard to Destiny’s tardiness to school, the appellate court noted that the juvenile court had not drawn any direct connection between school tardiness and any risk of physical harm. Furthermore, all of the evidence showed that the tardiness problem was in the past. The principal’s testimony showed that the problem had not occurred during the current school year, and so the appellate court saw no way that tardiness could cause a risk of current or future harm.

The appellate court also found that the evidence did not support a finding that the mother’s drug use, by itself, presented a risk of physical harm to the child. California law holds that drug use by a parent does not confer jurisdiction without evidence of other risk of harm. The only concrete harm that DFCS had cited related to occasional secondhand smoke and a report from when Destiny was an infant. It found that neither demonstrated a risk of imminent harm.

Thomas Huguenor is a divorce and child custody lawyer certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. Contact us today online or at (858) 458-9500 to schedule a free and confidential consultation.

More Blog Posts:

California Supreme Court Affirms Adjudication of Dependency of Two Children Due to Sibling's Death in a Car Accident: Los Angeles Co. Dep't of Children and Family Svcs. v. William C, San Diego Divorce Attorney Blog, October 18, 2012

Reunification with Children Denied for California Father Because of Abuse Allegations, San Diego Divorce Attorney Blog, September 27, 2012

Court Upholds Termination of California Man's Parental Rights, San Diego Divorce Attorney Blog, July 5, 2012

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