![]() The court of appeal noted and agreed with the lower court that Destiny had not suffered any “serious physical harm or illness.” But the court of appeal disagreed with the lower court’s finding that the mother’s drug use endangered the child’s physical health and safety and placing Destiny at risk of physical harm and danger.Ģ. Here is what the court of appeal looked at in reaching its conclusion:ġ. Section 300(b) says “juvenile court may assert jurisdiction over a child when the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.” The court of appeal found that there was no evidence that Destiny was in “serious physical harm” resulting from parental neglect. The court of appeal did not agree with the lower court. The court essentially decided that there was no reasonable means to protect Destiny from this “risk” other than removing her and placing her with her maternal grandmother. The court decided that Destiny was at “risk of physical harm” because Destiny was often late to class in the previous year and that her mother was in denial of her drug habit. She told them that her mother tucks her in bed at night, plays video games with her, goes to her school games, does not punish or abuse her and that she wanted to return to living with her mother.ĭuring a later disposition hearing, the court agreed that Destiny was well-cared for, clean, and well fed. Throughout this entire time Destiny told DCFS that her mother was a loving and attentive mother. During one of these random tests, the mother again tested positive for both marijuana and methamphetamine and DCFS took Destiny from the mother and placed her with her maternal grandmother. But the mother was required to undergo weekly random tests. ![]() A detention hearing was held where Destiny was left in her mother’s custody. Shortly after the results of the test came back, DCFS filed a petition to have Destiny declared a dependent under section 300(b). Unfortunately for the mother, a drug test done the same day came back positive for methamphetamine. Mother claimed that she never smoked around Destiny. The police and DCFS investigated the claim and found the claims to be “unfounded.” However, during the investigation, Destiny’s mother told DCFS that she uses marijuana on a weekly basis and she used to use methamphetamine but had stopped over a year ago. In September 2011, someone called the DCFS and claimed that the child, Destiny (11 years old) was being sexually abused. Here are the facts of the In Re Destiny S. But whether this is part of a trend regarding drug use and its effect on custody remains to be seen. The question is whether this case may spill over into family law cases, such that Orange County family law judges may use this decision when they are faced with custody cases that involve substance abuse? Family Court has a different set of rules so, on the surface, the answer is likely no. ![]() The question is essentially what impact substance abuse has in a child custody setting, in this case a setting before DCFS. The opinion deals with a mother using marijuana and methamphetamine and her child’s protection under Department of Children and Family Services (DCFS). The In Re Destiny S appellate case was published on Octoby the Court of Appeal, Second Appellate District (which is the Court of Appeal for Los Angeles County).
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