An Interesting Case: Is Drug Use Ok Prior to Visitation Acceptable?

In a recent case in the New Jersey Superior Court, Appellate Division, Case Number: A-2571-10T4, filed: December 21, 2011 declared that not all instances of drug ingestion of a parent will serve to substantiate a finding of child abuse or neglect. The court was addressing a case involving a father with supervised visitation with his daughter due to charges of assault and child abuse.

The Division of Youth and Family Services had obtained an order restricting the father's contact with his daughter to division-supervised visits. He was also ordered to attend substance abuse treatment and submit to urine testing.

At supervised visits, the father tested positive for cocaine and marijuana, and later admitted using such drugs two days prior to the visits. (The test results came back several days after the visits, which the visitation supervisor reported were uneventful, with the father acting appropriately and showing no signs of impairment.)

Finding that the father had not fully cooperated with the recommended drug treatment, the trial court held that he had exposed the 11-year-old daughter to a substantial risk of harm during the visits by testing positive for cocaine and marijuana, and concluded that the division had proven by a preponderance of the evidence that he had neglected her.
Reversing, Judge Ellen L. Koblitz accepted the trial court's factual findings, but disagreed that such behavior inherently created a substantial risk of harm to the child. The Court of Appeals noted that the Division reported that the father behaved appropriately at both supervised visits and demonstrated no indicia of impairment. Thus, the State had not demonstrated any risk, let alone one of a substantial nature, to his daughter.

“Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.”

“We recognize that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired. However, Title 9 [incorporating the state child abuse statutes] is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

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