When the Potential Harm is Removed, Children Should Be Returned to their Parents

In September of 2019, Mother [M] and her live-in Boyfriend [B] were arguing in the front yard, when B threw M to the ground and began choking her.  The neighbors saw the violence, intervened on M’s behalf and called the police.  The police arrived and arrested B.  The police also notified the Orange County Social Services Agency [Agency] of the domestic violence because of M’s three minor children, Daughter 1 [D1] age 16, Daughter 2 [D2] age 11, and Son [S] age 10, living in the same household.

D1 had been home when the abuse took place, and told Agency’s social worker that she hated B because he was abusive to M, that M was abusing drugs, and bought drugs instead of food for the family. Agency also interviewed M’s mother [G] who lived in the same apartment building as M and cared for the three children often.

G told Agency that M was a veteran suffering from post-traumatic stress disorder, and used marijuana to help her cope.  G also told Agency that M did not buy drugs instead of food.  D1 had mental health issues and refused to eat the food M bought.  She also said that D1 was home because she refuses to go to school and refuses to be treated for her mental health issues.

M told Agency that she used marijuana because the drugs given to her by the VA made her into a zombie.  She was also getting treatment for her PTSD at the VA and had taken D1 to the emergency hospital when she began cutting herself.

Agency used the information to place the children in foster care to prevent them from harm.  Agency also the information to petition the juvenile court for continued placement in foster care.

The juvenile court judge agreed with Agency and placed the children in the care of G.  The court also ordered that Agency provide M and the children with reunification services and mental health care for M (coordinate with the VA), drug testing and parenting classes.

At subsequent hearings, Agency told the judge that M was using the VA for mental health care, but the VA would not provide any medical information to Agency; M terminated her relationship with B; that M went to most of her drug testing sites and that the family home was clean and well-stocked with food.

Ten months after the initial incident, the juvenile court had another hearing to determine if M should regain custody of her children.  Agency wanted the children to remain in G’s care because of the problems of the past.  The judge agreed with Agency finding a substantial risk of harm to the children and M appealed.

The Appellate Court agreed with M and reversed the decision stating: “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.

 “The juvenile court’s focus on Mother’s past as a victim of domestic violence, which had not occurred again during the 10 months the case was pending, and not a current risk, was error. As for Mother’s substance use, she candidly admitted marijuana eased her PTSD symptoms to avoid using other drugs. Mother had a valid prescription to use marijuana, and Mother’s use of marijuana was no longer a real concern to SSA, which was established through Smith’s testimony, who the court found credible. This evidence did not demonstrate a current risk to the children.”

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