May 01, 2013

Mother’s Drug Use Contributed to Child’s Neglect

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re MC, 2013 WL 1490665 (Wyo.).

Trial court properly found there was a nexus between mother’s substance abuse and neglect of her children in dependency case because mother’s marijuana use was shown to contribute to the conditions in the home including the presence of animal feces, bloody rags, rotten food from dumpsters, a lack of heating, and her child being high in school.

Children came to the attention of the court for neglect after the youngest, age 12 reported he was high from smoking marijuana the night before. He claimed he and his brother had smoked their mother’s marijuana. Based on this report, law enforcement searched the home and found the drug and paraphernalia as described. Mother was arrested, jailed briefly and released on bond. 

At the shelter hearing, the parties agreed to return the children to the mother provided she clean her home, allow regular visits by the agency, and submit to drug tests.

Before the adjudication hearing, the mother’s attorney sought to dismiss or strike witnesses due to failure of the agency to comply with discovery rules regarding a witness list and a negative drug test. There was some apparent delay or miscommunication between the agency and the county attorney regarding the drug test. There was disagreement about when the attorney knew of the negative drug test. The juvenile court denied the motion to dismiss or strike. 

At the adjudication hearing the court heard testimony of a sheriff’s deputy. He reported that the home contained pill bottles scattered around, bloodied bandages on the floor, marijuana and paraphernalia accessible to the children, animal feces on the floor, rotting food obtained from dumpsters, and that the older brother’s room was not heated and had leaking water. 

An agency probation officer testified that the mother told her she would not quit getting high even if her family was broken up. The older brother testified that his mother smoked marijuana often; when she did she would stay in her room playing video games and watching television, and she would be "on edge." He confirmed that his room was often freezing, he could often see his breath at night, and that his mother would not use the central heat because she did not have filters for it. An agency social worker testified that she had seven or 10 urinalyses, all but one of which was positive for marijuana.

The mother testified that she did not smoke marijuana around her children. She stated she had not smoked in 60 days, but believed she was still positive because of her weight and lack of regular hydration. She said she was in an addiction recovery program through church. She believed her teenaged children were old enough to clean up after themselves. She disagreed with her son’s testimony regarding the use of central heat. She also testified about the numerous behavior problems she had with her older son.

The juvenile court found the children were neglected. It found that the conditions in the home were unsanitary and the mother’s marijuana use was contributing to health and safety risks for the children. Moving to disposition, it ordered the children to remain in the home under agency supervision. The mother appealed. 

The Wyoming Supreme Court affirmed. The court first addressed the discovery issues. The mother argued on appeal that the discovery failures violated her due process. Mother correctly noted that juvenile court rules contained a self-executing discovery provision. The state was required to provide a witness list and notice of exculpatory information 30 days after the petition. 

The supreme court found the record showed no valid reason for the state’s failure to provide a witness list. Whether or not the negative drug test was in fact exculpatory, and even came under the court rule, was a closer question. Arguably, it contradicted the son’s testimony, though given mother’s theory of why she had positive tests, it did not necessarily help her case.

The supreme court noted that the mother’s attorney sought only the remedies of striking witnesses or dismissal, both of which would have potentially led to the same result. She did not offer other options such as requesting a recess or continuance, which might have been appropriate to further develop a defense. Rather, the mother’s attorney was still able to conduct expert cross-examination despite not having a witness list, including that she apparently had detailed factual knowledge of the case at her disposal. 

Dismissal, or effective dismissal, is a drastic remedy, the court noted. In a neglect case that remedy for a discovery violation could result in children being harmed. Given the above, the court found the juvenile court did not abuse its discretion in not granting these drastic remedies. Whether other remedies such as continuances would have been warranted, was not addressed by the trial court. 

As to the sufficiency of the evidence of neglect, the court noted that unsanitary home cases should be held to the standard of a serious health or safety risk, not merely what a general person in the community might find unpleasant. Here, however, the trial court did not err in concluding the home was unsafe given the numerous issues presented. 

Also, regarding the mother’s use of marijuana, the facts in the record were distinguishable from a case where a parent uses an illegal drug away from their child. The mother’s open use led to her son’s use and likely contributed to other problems in the home.