Justices Uphold Denial of Custody Over Drug Use

The California Supreme Court, acting in a precedent-setting case, has cleared the way for authorities to deny a mother custody of a child born suffering the effects of illegal drugs she took during pregnancy.

Over two dissenting votes, the justices refused to disturb a ruling last November by a state Court of Appeal in San Diego that for the first time denied custody solely because of a mother’s drug use.

The high court action, taken in a brief order released Thursday, allows the appellate decision to become binding on trial courts throughout California. Only Justices Allen E. Broussard and Marcus M. Kaufman voted to grant a hearing of the mother’s appeal.

The justices declined to hear claims by the attorney for a Vista woman in the case that drug use--without other evidence of child abuse--was insufficient grounds to deny custody. The ruling was so broad, the lawyer warned, that officials theoretically could remove custody because of harm to a child from the mother’s smoking of cigarettes.

The attorney, James G. Dunn of San Diego, said Friday the ruling represented an invasion of the constitutional right to privacy and that an appeal to the U.S. Supreme Court was probable. “We believe the state is improperly interfering with a mother’s prenatal conduct,” he said.

Concern also was expressed by Pamela A. Mohr, directing attorney for the Childrens Rights Project in Los Angeles, one of several legal and medical groups that had urged the high court to overturn the appellate ruling.

Mohr said the decision will have a “tremendous impact” in Los Angeles, perhaps doubling the 2,500 cases involving drug-affected babies that come into court annually. The risk of losing custody solely because of drug use, she added, would discourage pregnant women from obtaining prenatal and hospital care.

“We are very disturbed by this ruling,” Mohr said.

San Diego Deputy Dist. Atty. Edward J. Mantyla agreed that it is likely there will be increased attempts by authorities to deny custody to mothers whose children are affected by drug-use. But he cautioned that such action by juvenile courts was far from automatic. Also, he noted, there are alternatives such as permitting a father to retain custody.

Mantyla praised the appellate ruling as “a correct and well-reasoned” one. “This is something that has been badly needed to clarify a gray area of the law but one that is exploding.”

The high court’s refusal to set aside the decision came as public concern has grown over narcotics use by mothers-to-be. The appeals court noted that according to a recent government study, an estimated 11% of the children born in U.S. hospitals have been exposed to dangerous drugs.

Legislation introduced at the state capitol would provide added treatment programs for maternal drug-abuse and in some instances allow manslaughter charges to be brought against mothers whose children die after birth from drug exposure.

The case involved a woman identified only as Kelly D., who gave premature birth to a son, Troy D., in February 1988 at an Oceanside hospital. Both the mother and son tested positive for amphetamines and opiates, with the boy suffering from weight loss, lethargy and other signs of drug withdrawal.

The hospital reported the results to child-protective authorities, and later a juvenile court took custody from the parents and placed the boy with his grandparents. The parents were permitted visits only with the consent of a social worker and were ordered to submit to psychological evaluations and to undergo drug rehabilitation, including drug testing.

The mother challenged the action in court. But on Nov. 15, the state Court of Appeal upheld the removal of the child, saying officials had acted properly to protect the boy from abuse and neglect.

“The severe problem of babies born under the influence of dangerous drugs due to their mothers’ use of such drugs during pregnancy has reached great proportions,” Appellate Justice Charles W. Froehlich, Jr., wrote for the panel. “ . . . We agree that prenatal use of dangerous drugs by a mother is (evidence) of future child neglect.”

The court acknowledged that the fetus does not enjoy the same legal status as a child after birth. But nonetheless, it said, a living child “must be afforded the protection of the juvenile court even though he is at risk because of his mother’s actions before his birth.”

The panel also turned down the mother’s claims that disclosure of the drug tests violated a state law protecting the privacy of medical records and the legal privilege of confidentiality between a physician and a patient.

The mother’s use of dangerous drugs during pregnancy brought harm to her son, and the hospital staff properly reported their suspicion of child-abuse as required by state penal code provisions, the court said.