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8/21/2021

Hard drug use without more

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In re Destiny S. Cal.App. 2 Dist. October 31, 2012148 Cal.Rptr.3d 800

HARD DRUG ABUSE WITHOUT MORE

​
B. Use Of Marijuana And Hard Drugs
This will not be an entire review of In re Destiny S. The focus will be on one small section.


"It is undisputed that a parent's use of marijuana “without more,” does not bring a minor within the jurisdiction of the dependency court. The same is true with respect to the use of hard drugs. (In re Rocco M. (1991) [mother's cocaine use standing alone was not sufficient basis or jurisdiction under section 300 (b). Instead, the DCFS had to present evidence of a specific, non-speculative and substantial risk to Destiny of serious physical harm. (In re David M. (2005) 134 Cal.App.4th 822, 830, 36 Cal.Rptr.3d 411 [jurisdiction under section 300, subdivision (b), reversed where mother had continuing substance abuse problem, but there was no evidence of a specific, defined risk of harm from mother's substance abuse."

The main concern that many at the agency held was that hard drugs are considered that hard drugs as they tend to lead to powerful addictions with terrible outcomes. Meth and heroin are insidious in that they will have the user use amounts without any severe side effects or detriment to their parenting, but over time the substance abuse will become so severe that the parent will use enough that it will impact their daily life and pose a risk of detriment to the child's wellbeing. So if Destiny S is speculating that a mother using weed without "anything more" is the same as a mother mainlining meth without "anything more" are one in the same in the eyes of the law, the department would dissent citing that that is error as meth/heroin carry far more abuse potential. They could even go as far as to speculate that there is a reason that "weed" is legalized in many states whereas meth/heroin are still CII and CI substances. 

Although the purpose of dependency is to keep children safe and in stable families, the parent's right to custody of their children is also at stake. In this case the proper steps would be to open a family maintenance case (with HOP/home of parent) and provide substance abuse counseling and maybe NA attendance if needed. The random drug testing would most likely be ordered as a part of the maintenance plan regardless if there are signs of dependence or mild impairment in functioning as the parent should always be striving to maintain their sobriety especially with hard drugs such as meth, heroin, or crack. If the parent is able to maintain their sobriety and keep up with their programs, then the department should be able to request that the case be closed without an Allen M hearing set by minor's counsel. However, if many parents are not able to commit to their sobriety or keep up with their programs, then the department would not be out of line to request that there be a 300 petition with a b count and a removal order.

It should be understood that parents may have trouble making all of their NA meetings or miss a drug test here and there as many parents may have two jobs or other commitments but the court should look at the totality of the circumstances and make a compassionate and well informed decision based on their compliance as a whole. There should not be FR bypass requested or dependency jurisdiction taken the moment the parent fails to make one meeting or drug test as that is unrealistic and unfair.


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© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose