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Case of the Month Archive

January 2024

As a matter of first impression, the California Supreme Court held that for purposes of W&I C §300(b), "substance abuse" means excessive use of drugs or alcohol. . .

 

The California Supreme Court held that for purposes of establishing dependency jurisdiction under W&I C §300(b)(1)(D) [child suffered/risks suffering serious physical harm due to parent's mental illness, developmental disability, or substance abuse], the term "substance abuse" carries its ordinary meaning of excessive use of drugs or alcohol and does not require a diagnosis by a medical professional or satisfaction of the prevailing criteria for substance use disorder as specified in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

 

In re N.R.

(December 14, 2023)

California Supreme Court, S274943, ___ P.3d ___, 2023 WL 8637025, 2023 FA 2112, per Guerrero (Corrigan, J., Liu, J., Kruger, J., Groban, J., Jenkins, J., and Evans, J., concurring). Los Angeles County: Matthews, J. For Father (Appellant): Sean Angele Burleigh. For Los Angeles County Department of Children and Family Services (Respondent): David Michael Miller. CFLP §G.43.

 

On November 19, 2020, the Los Angeles County Sheriff's Department executed a search warrant at mother's house for weapons and drugs. A social worker from the Los Angeles County Department of Children and Family Services (DCFS) was present during the search and inspected the premises as well. Finding safety concerns at mother's house, the social worker requested father to pick up N.R., who at the time was 12 months old.

The social worker accompanied father to his apartment and, after an assessment of his premises, found the residence "generally positive." During an initial interview, father denied abusing substances. However, father's drug test conducted that same day returned positive for a high level of cocaine metabolites. When the social worker discussed the results of the drug test with father, father said that he was afraid to admit that he used cocaine a few days prior to celebrate his birthday. Father denied actively using cocaine and said that he was not expecting to take care of N.R. or else he would not have used drugs earlier that week.

N.R. remained in father's care from November 19, 2020, until December 18, 2020, when N.R. was then removed from father's care and placed with a maternal uncle. DCFS then filed a petition alleging N.R. came within the juvenile court's dependency jurisdiction based on W&I C §300(b)(1)(D) [child suffered/risks suffering serious physical harm due to parent's mental illness, developmental disability, or substance abuse]. In a subsequent interview with a social worker, father admitted to using cocaine four consecutive days from November 12, 2020, through November 15, 2020, to celebrate his birthday. He further stated that he used cocaine once or twice every two weeks over a five-year period but denied having an addiction. When the social worker explained to father what a Child and Family Team was as well as its potential benefits, father said that he did not want to participate in the program and that he wanted only to take drug testing.

In April 2021, the juvenile court (Los Angeles County's Matthews) held a combined jurisdiction and disposition hearing, concluding that father had "'substantial drug abuse history'" that warranted dependency jurisdiction. The juvenile court further ordered N.R. to live with mother as long as mother complied with specified conditions and also ordered father to have supervised visitation and to participate in random drug testing.

Father appealed, arguing that his use of cocaine did not constitute substance abuse that supported a jurisdictional finding. The Second District Court of Appeal affirmed the juvenile court's ruling. The Second District concluded there was substantial evidence to support a finding that father abused cocaine, noting father's initial denial of drug use, the high level of cocaine metabolites in his positive test result, and his admission to using cocaine once or twice every two weeks. The Second District justices also applied the tender years presumption, providing that when a very young child is involved in a dependency action, a finding of substance abuse is prima facie evidence of the inability of a parent to provide regular care resulting in a substantial risk of physical harm. Father appealed, and the California Supreme Court reversed and remanded.

On appeal, father argued that substance abuse by a parent or guardian under W&I C §300(b)(1)(D) may be established only by a professional diagnosis or satisfaction of relevant criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM). Acknowledging the split authority over how to define "substance abuse," father urged the high court to adopt the standard set forth in In re Drake M. (2012) 211 Cal.App.4th 754, 149 Cal.Rptr.3d 875, 2012 FA 1567 [a finding of substance abuse can be found only by a trained professional or based on DSM criteria].

The justices first discussed the applicable law and underlying principles. Per W&I C §300(b)(1)(D), jurisdiction over a child in a dependency proceeding exists where the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness that results from an inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. The central purpose of dependency law is to provide "'maximum safety and protection for children'" being abused, neglected, or exploited. In carrying out this goal, dependency law balances several interests, including the "'children's interests in safe and stable homes; parents' interests in raising their children; families' shared interests in each other's companionship; and the state's interest in protecting society's most vulnerable members.'"

 

Statutory language supports court's interpretation. . .
Turning then to father's argument, the high court held that for purposes of establishing dependency jurisdiction under W&I C §300(b)(1)(D), the term "substance abuse" carries its ordinary meaning of excessive use of drugs or alcohol. Thus, neither a diagnosis by a medical professional nor satisfaction of the prevailing criteria for substance use disorder as specified in the DSM is required to demonstrate substance abuse. In reaching this conclusion, the justices first examined the statutory language. The statute itself does not define "substance abuse," a fact that suggests the Legislature intended the term to carry its ordinary meaning and that the term is not a special term of art. The justices reasoned that if the Legislature had intended that a professional diagnosis or satisfaction of DSM criteria were required, it would have noted so on the face of the statute. The justices observed that the Legislature did just that in W&I C §355.1(b), which provides that a court's finding that an injury to a child would not ordinarily have occurred except as the result of negligence must be "'based upon competent professional evidence.'"

Father also based his interpretation of "substance abuse" on the principle of noscitur a socii [associated words in a list bear on one another's meaning]. More specifically, father argued that the statute's grouping of "substance abuse" with "mental illness" and "developmental disability," two terms that father argued may be shown only by the satisfaction of professionally developed criteria, means the Legislature must have intended the former term also to require such criteria. The justices rejected this argument for a couple of reasons. First, case law does not support father's premise that mental illness and developmental disability may be established only by professionally developed standards. Second, the justices noted that the common thread among the three terms could have been that each leads "to an inability to provide a child with regular care, while at the same time appreciating that each could involve somewhat different kinds of proof."

 

Legislative history and public policy supports court's interpretation. . .
After examining relevant legislative history and underlying policy concerns, the justices found further support for their interpretation. First, the legislative history materials related to the 1987 bill that added the substance abuse language did not mention the DSM. Second, the DSM itself cautions that proper use of the manual's "'criteria requires specialized clinical training that provides both a body of knowledge and clinical skills.'" In other words, DSM criteria should not be applied by laypersons. Third, application of DSM criteria would not comport with dependency law's central goal "'to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited.'" For example, the DSM was not designed to "'assess risk to a third party, much less a child.'" Fourth, whereas an individual has an incentive to disclose honestly the facts relating to substance abuse for purposes of an accurate diagnosis, this incentive to be honest does exist in the context of a dependency proceeding. As a result, courts "may lack the information necessary to apply the DSM criteria in their intended manner." And finally, according to the most recent version of the DSM, a person is deemed to have a substance use disorder if he meets two of eleven specified criteria. Here, the justices wondered why the juvenile court would need to find two criteria present if a person suffers from just one of the criteria to a degree that causes him to be unable to care for his child. For these reasons, the justices concluded that "substance abuse" in this context does not require a professional diagnosis or the satisfaction of DSM criteria.

The justices next rejected the tender years presumption set forth in Drake M., noting several reasons for their repudiation. First, W&I C §300(b)(1)(D) does not expressly include such a presumption. Instead, the text makes clear that the government must establish that: (1) substance abuse; (2) makes a parent or guardian unable to provide regular care for a child; and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness. The justices noted that the tender years presumption "short circuits" this analysis. Second, if the Legislature had intended for the statute to include a presumption, it would have said so. For example, W&I C §355.1(a) provides that certain "'competent professional evidence'" will establish prima facie evidence that the minor is a person described in specified provisions.

Finally, the justices noted that the following decisions are disapproved insofar as each required a medical diagnosis of substance abuse or satisfaction of the relevant DSM criteria as necessary to a finding of substance abuse or recognized the tender years presumption: In re L.C. (2019) 38 Cal.App.5th 646, 250 Cal.Rptr.3d 487, 2019 FA 1900; In re Alexzander C. (2017) 18 Cal.App.5th 438, 226 Cal.Rptr.3d 515; In re Kadence P. (2015) 241 Cal.App.4th 1376, 194 Cal.Rptr.3d 679; In re Christopher R. (2014) 225 Cal.App.4th 1210, 171 Cal.Rptr.3d 14; Drake M.; and In re K.B. (2021) 59 Cal.App.5th 593, 273 Cal.Rptr.3d 674. Accordingly, the California Supreme Court reversed the Second District's judgment and remanded to the Second District for further proceedings consistent with its opinion.

 

 

COMMENT:

  

Several organizations filed amicus briefs in support of father's position, urging the high court to adopt an "objective and scientifically based definition of 'substance abuse.'" These briefs expressed a common concern that without a uniform, scientific standard, courts have too much discretion to impose their subjective value judgments, which may result in inconsistent decisions. Although the Supreme Court acknowledged that a "commonplace understanding of substance abuse may seem broad and potentially capable of inconsistent application if read in isolation," it emphasized that dependency jurisdiction may not be premised on a finding of substance abuse alone. The juvenile court must also find evidence that the substance abuse makes a parent unable to provide regular care for a child and that this inability caused a child to suffer serious physical harm or illness or places a child at substantial risk of such harm or illness. These additional requirements clarify "the kind of excessive drug or alcohol use that [W&I C §300(b)(1)(D)] is concerned with."

 

Library References
16 Witkin, Summary of Cal. Law (11th ed. 2023) Juvenile, §191
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶7:40

 

 

 
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