May 6, 2010
Appellate Reversal of Child Removal for Parent's Drug Possession Charge
The Nebraska Court of Appeals has overturned a trial court decision to remove a child from the home based on his father's arrest for posession of crack cocaine.
Mere possession of an illegal drug does not mean the state can take custody of a child, according to a Nebraska Court of Appeals decision.
The father, whose full name is not used in the opinion, was picked up with a small amount of crack cocaine in March 2009.
That summer the Douglas County Juvenile Court determined that his infant son lacked proper parental care and supervision and took custody of the child.
The Appellate Court, in a split decision released Tuesday, overturned that ruling .
Juvenile Judge Donna Taylor based her decision that the child faced potential harm because the father might be incarcerated on a drug conviction.
However there was no evidence that the father was actually charged with any crime.
And if he were charged, he could get probation rather than a prison sentence, according to the Appellate Court decision.
Basing a decision on whether a parent might be incarcerated could apply to someone who got a number of speeding tickets or who wrote a bad check, said Stephen Kraft, a Douglas County public defender who represented the father.
In addition, the Appellate Court decision noted that there was no evidence that the father had a history of drug use.
The majority of the Appellate Court panel which heard the case also responded to a dissenting opinion that used information about drug addiction and abuse from government reports on websites.
"We strongly believe that we are limited to the evidence in the record," they wrote.
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