Dependency Update: Drug Use is Not Always Drug Abuse (In Re J.A.)

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Dependency Update: Drug Use is Not Always Drug Abuse (In Re J.A.)

  • By: Kelsey Walsh

Drug use while pregnant does not necessarily amount to drug abuse according to the Second District Court of Appeal.  The Second District Court of Appeal recently overturned a ruling by the Los Angeles County Superior Court, which held that a mother’s use of medical marijuana during the last four months of her pregnancy, resulting in her child testing positive for cannabinoids at birth, was enough to support a finding of dependency. The petition, filed by the Department of Children and Family Services (DCFS), alleged the child came under the purview of Welfare and Institutions Code section 300, subdivision (b), in two counts. The first alleged the baby was born with a positive toxicology screen for marijuana, placing the child at risk of serious physical harm and emotional damage. The second alleged that the mother has a history of substance abuse and is a current marijuana abuser, rendering her incapable of providing care to her children. The mother believed using marijuana for discomforts associated with her pregnancy was a safer alternative than narcotics, although she never disclosed her decision to self-medicate with her doctor. Ultimately, her children were adjudicated dependents of the court, though they remained in her care because the court found there would be no detriment to the children. The mother appealed the ruling of the Superior Court, arguing that there was insufficient evidence to support the underlying allegations in which it sustained the petition, specifically that there was no substance abuse and no substantial risk of harm to the children.

To come under the purview of Welfare and Institutions Code section 300, subdivision (b)(1), the child must have “suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of…the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s…substance abuse.” A finding of dependency cannot be based on substance abuse alone; jurisdiction requires a substantial risk of harm to the child arising from the substance abuse. (In re Alexis E. (2009) 171 Cal.App.4th 438, 453.)  The law is vague as to when drug use becomes drug abuse; however, in the present case, evidence that the mother’s marijuana use during her pregnancy amounted to abuse is speculative at best.  While the court need not wait until a child is seriously abused or injured to assume jurisdiction to protect a child, there is no evidence that the mother’s marijuana use during her pregnancy rendered her unable to care for her toddler or caused damage to her unborn child. The evidence in this case is that the mother used marijuana edibles during the last four months of her pregnancy, her child tested positive for cannabinoids at birth, but did not appear developmentally delayed, although there could be a possibility that the child may show delays in the future. The DCFS relied on authority that prenatal exposure to drugs creates a presumption of dependency, but this presumption fails “where the court finds, based upon competent professional evidence, that an injury, injuries or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of section 300.” (In re Troy D. (1989) 215 Cal.App.3d 889, 897.) No such competent professional evidence exists in the present case. As such, the Second District Court of Appeal overturned the order of the Superior Court, finding in mother’s favor.