Lessons learned from A.S. - the need for evidence
In my experience, some lawyers representing the Department or the children ask themselves, “Has the parent proved that they have addressed the concerns that brought the children into care?” Fair enough, but it is insufficient. At trial, the burden is on the Department to prove that going forward the parents are an unacceptable risk of abuse or neglect to the children. This is a different issue and should be presented to the court as such.
It is important to note in A.S. that the Department became involved because Mother took one of her Children to the hospital because she was concerned he had been sexually abused. In other words, Mother was protective. We’re told that the Department developed concerns about Mother’s instability, the parents’ drug use, and domestic violence. However, the caseworker (whom I respect) “did not elaborate on the reasons for these concerns.” That’s a problem.
No drug test results were admitted into evidence. The court of appeals claimed that this could have shown the amount of Mother’s drug usage, although I’m not confident of that. The court of appeals also noted that the drug tests could have indicated when Mother used marijuana, which which is more likely to be relevant.
The most important point on drug usage is this:
There’s a similar concern about the lack of evidence on domestic violence:
Slip op. at 17.
It is important to note in A.S. that the Department became involved because Mother took one of her Children to the hospital because she was concerned he had been sexually abused. In other words, Mother was protective. We’re told that the Department developed concerns about Mother’s instability, the parents’ drug use, and domestic violence. However, the caseworker (whom I respect) “did not elaborate on the reasons for these concerns.” That’s a problem.
No drug test results were admitted into evidence. The court of appeals claimed that this could have shown the amount of Mother’s drug usage, although I’m not confident of that. The court of appeals also noted that the drug tests could have indicated when Mother used marijuana, which which is more likely to be relevant.
The most important point on drug usage is this:
The Department also failed to present any evidence that Mother used marijuana in a manner or under circumstances that harmed or threatened to harm the children in any way. Without such evidence, we cannot conclude that any danger to the children from Mother’s marijuana use rises above mere ‘suspicion or speculation of possible harm.’
There’s a similar concern about the lack of evidence on domestic violence:
Although [the] caseworker … testified that the Department was ‘concerned’ about domestic violence between Mother and Father, the nature of those concerns was not explained, and the Department presented no evidence that any such domestic violence had occurred.
Slip op. at 17.
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