The California Supreme Court has unanimously held lower courts wrongly allowed authorities to alter a custody agreement, ruling that although a parent was a regular cocaine user, substance abuse alone isn’t sufficient criteria for such rulings.
Chief Justice Patricia Guerrero wrote the court’s opinion, issued Dec. 14, which negated a longstanding concept known as the “Tender Years” presumption. She said the court granted review on “two related issues associated with the exercise of dependency jurisdiction.” First, how the Welfare and Institutions Code defines “substance abuse,” and second, if substance abuse does possibly create dependency jurisdiction, the criteria that should be used to establish that determination.
“Some courts have held that the existence of substance abuse by a parent or guardian, by itself, amounts to prima facie evidence of both an inability to provide regular care for a child and a substantial risk of serious physical harm when the child is of ‘tender years,’ a term that is sometimes used by courts to describe young children with limited ability to care for themselves,” Guerrero wrote. “We reject this tender years presumption as inconsistent with the Legislature’s intent, as manifested in the statutory text.”
The underlying matter in November 2020, when police officers searched the home of the mother of a 12-month-old child, identified in legal filing only by the initials N.R. The child’s parents lived separately and shared custody.
During that process, a Los Angeles County Department of Children and Family Services social worker expressed concerns about the mother’s home and asked if the child could stay with the father. Although the social worker found the father’s home to be suitable, his drug test showed recent cocaine use. In early December, the child was placed with a maternal uncle.
Ultimately, Los Angeles County Superior Court Judge Martha Matthews dismissed concerns about the mother’s former residence, as she had moved into her own apartment, and concluded the father’s testimony about drug and alcohol use warranted removal of his custody rights.
The father appealed, but a Second Appellate District panel affirmed the ruling. The appeals court cited the child’s age and “determined that father had not rebutted the prima facie showing of a substantial risk of serious physical harm established by his substance abuse, perceiving father’s reaction to the positive drug test and his refusal to participate in services beyond random drug testing as further evidence of such risk,” Guerrero wrote.
The state Supreme Court held that lawmakers, when adding substance abuse language during a 1987 overhaul of dependency legislation, didn’t impose a requirement for either a professional medical diagnosis or satisfaction of Diagnostic and Statistical Manual of Mental Disorders criteria. Guerrero wrote the law doesn’t define substance abuse, though it does clarify other terms relevant to dependency jurisdiction, suggesting an intent “for this term to bear its ordinary meaning in this context.”
Although the father argued the DSM standard should prevail — and that he did not meet is benchmarks for substance abuse — the court noted “it would be unusual for the Legislature to have delegated to a specific body such as the American Psychiatric Association the authority to define such a consequential term appearing in a statute,” especially since that entity could change its definitions without lawmaker input.
The court further rejected the father’s other attempts to advance a legal definition for substance abuse, including that the courts failing to adopt a standard violates his due process rights, and held “the recognition of substance abuse by a parent or guardian does not by itself establish that the other requirements for the exercise of dependency jurisdiction … have been satisfied,” Guererro wrote. “Even with sufficient proof of substance abuse, the government also bears the burden of proving by a preponderance of the evidence that this abuse makes the parent or guardian unable to provide regular care for a child, and that this inability has caused a child to suffer serious physical harm or illness or places the child at substantial risk of serious physical harm or illness.”
Regarding the tender years presumption, the court likened its rejection of that policy to other rulings that equated mental illness with a significant risk of serious harm to a child. It noted there are several sections of state law allowing for specific proof of a condition to constitute evidence of a factual conclusion, and so the lack of such a clause in dependency jurisdiction legislation is instructive.
In arguing to preserve the status quo, Guerrero wrote, DCFS “fails to fully grapple with the fact that the fundamental problem with the tender years presumption is not that it robs courts of discretion; it is that the presumption threatens to oversimplify the analysis required under” existing law, adding the juvenile court’s basic tasks should be the same regardless of a child’s age.
“A child’s youth and maturity level can bear upon the care that the child may require and whether a parent’s or guardian’s substance abuse places the child at substantial risk of serious physical harm,” Guerrero wrote. “Courts can properly take these facts regarding a child into account, together with all other relevant evidence, in deciding whether the government has met its burden at the jurisdictional stage. But courts may not shortcut the inquiry envisioned by the Legislature by regarding substance abuse as constituting prima facie evidence of an inability to provide regular care to a young child and a substantial risk of serious physical harm to that child, and then look to the parent or guardian to rebut this presumption.”
Finally, the court said the specific case of N.R. should go back to the appellate court to revisit its analysis in light of the broader decision about substance abuse and dependency.
The Supreme Court appointed attorney Sean Burleigh to represent the father.
Support briefs for his position came from Duke Law School, UCLA School of Law ,the Barton Child Law and Policy Center, the Association for Multidisciplinary Education and Research in Substance Use and Addiction, California Society of Addiction Medicine, Persons with Lived Experience in the Child Welfare System, California Dependency Trial Counsel, California Appellate Defense Counsel, American Civil Liberties Union Foundation of Southern California, ACLU Foundation of Northern California, the National Center for Youth Law and Children’s Rights, Drug Policy Alliance, Any Positive Change, Beyond Do No Harm Network, California Coalition for Women Prisoners, Children’s Defense Fund-California, CLARE Matrix, Community Legal Services in East Palo Alto, Elephant Circle, Immigrant Legal Resource Center, JMACforFamilies, Law For Black Lives, Legal Action Center, Legal Momentum, Women’s Legal Defense and Education Fund, Legal Services for Prisoners with Children, National Harm Reduction Coalition, National Health Law Program, A New Path (Parent for Addiction Treatment & Healing), Pregnancy Justice, San Francisco AIDS Foundation, Sidewalk Project and Professors of Social Work and Social Workers.
Los Angeles County DCFS was represented by county attorneys Rodrigo Castro-Silva, Dawyn Harrison, Kim Nemoy, Sarah Vesecky and David Michael Miller.
The California State Association of Counties filed a support brief.
Neither the California State Association of Counties nor LA County responded to requests for comment on the decision.