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.
Juvenile Dependency and