Tuesday, April 11, 2006

Case Law Developments: Exposure to Illegal Drugs Insufficient Basis for Dependency Finding

The Florida Court of Appeals reversed an order adjudicating a child dependent based the 12-year-old child's exposure to small quantities of marijuana and residual amounts of cocaine in several areas of the child's house.  The court emphasized that findings of dependency must be based on evidence that a parent's behavior creates an  "imminent risk of being abused or neglected as those terms are defined by statute." The court observed that, "Exposing a child to controlled substances constitutes “harm” in only two situations: (1) when a mother’s use of a controlled substance during her pregnancy demonstrably adversely affects the child; or (2) when a parent’s “continued chronic and severe use of a controlled substance” demonstrably adversely affects the child.  Absent such evidence, the trial court’s adjudication of dependency based on this ground must be reversed."

The court also rejected the proffered basis for the dependency that the child was at risk of being left alone when Father was arrested.  The court noted that the mere fact that a child has been left alone is insufficient proof of neglect. 

J.B. v. Department of Children and Families, 2006 Fla. App. LEXIS 5063 (April 7, 2006)
Opinion on the web (last visited April 11, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/04/case_law_develo_14.html

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