November 18, 2012 By Paul Wallin

Under Welfare and Institutions Code §300(b), a juvenile court may assert jurisdiction and remove a child when the child has suffered, or is at a substantial risk to suffer, serious physical harm as a result of their parent’s failure to supervise or protect the child.

However, a recent California Court of Appeals decision in October 2012 held that a parent’s drug use, without more, is not a sufficient basis for jurisdiction. The Los Angeles County Department of Children and Family Services (DCFS) was originally contacted about alleged sexual abuse of the child by an unknown perpetrator.  While the sexual abuse was unfounded, the child’s mother admitted to the DCFS that she had a history of using methamphetamine and marijuana.  The mother also stated she smoked marijuana on a weekly basis, but not around her daughter.

The Court of Appeals found there was a lack of evidence that the child was at risk of suffering any physical harm as the result of the mother’s use of illegal drugs. Specifically, the DCFS failed to present evidence of a specific, non-speculative and substantial risk to the child of serious physical harm.

The daughter told a DCFS social worker that she never saw the marijuana that her mother smokes, but she could smell it sometimes. The DCFS argued that this placed the daughter at risk of secondhand smoke, but the Appellate Court dismissed it as an ambiguous statement that did not suggest the girl was at risk of imminent physical harm from secondhand smoke.

Facing the threat of having a juvenile court take jurisdiction over and detain your child or children can be a nightmare scenario.  Let an experienced juvenile dependency attorney review your case and assist you in having your children returned to you as soon as possible.  The law firm of Wallin and Klarich is prepared to answer your legal questions and is immediately available to assist you with your case. Contact us today at 888-749-7428 for additional information. We will be there when you call.

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