The Shelter of the Law

Parental substance abuse introduces daunting complications into Juvenile and Family Court cases. Properly applied investigation, substance abuse monitoring, and treatment are crucial to ensuring the safety of children impacted by these issues. 

by Eric Frazer, Psy.D. and Linda Smith, Ph.D.

One of the most common issues that arises in Juvenile and Family Court is parental substance abuse. Once this allegation has been raised, there is immediate concern about the child’s safety and well-being. In particular, there is often concern about neglect and abuse. For example, will the parent prioritize drug seeking over caring for the child? Will the parent drive under the influence, with the child in the vehicle? Less commonly mentioned in the courtroom, especially in the family courtroom, is potential child exposure to drugs. Unfortunately, this is a significant risk to children, and should be considered and discussed in every case. 

One of the challenges family lawyers and courts face is how to properly investigate the substance abuse allegation and determine if it is a valid concern. Gathering and organizing the most relevant information has historically been difficult to do because of a lack of awareness regarding what is most relevant and important. Fortunately, the drug testing lab can bridge that gap of uncertainty, especially when there is an allegation about child exposure. 

The objective for any lawyer and the court is to have sufficient information available to rule in, or out, the substance abuse allegations. This information may be presented via admissible evidence, witness testimony, and/or expert testimony. The following pointers may be helpful to legal professionals so that they are able to most effectively present a case on this matter.

Step 1 – Inquiry & Investigation

One of the first steps in evaluating a substance abuse allegation is to ask research informed questions so that the most relevant data can be gathered. Questions should be focused on potential exposure of the children to parental drug possession or use. For example, relevant questions may include:

• Where does the defendant allegedly store the drugs?
• Does the child have easy access to these storage containers and locations?
• Is the child typically present when the drugs are used?
• In what ways may the child have been exposed?
• What steps, if any, did the parent take to protect the child from accidental exposure? 

Step 2 – Drug & Alcohol Monitoring

If a parent tests positive on an alcohol or drug test, this may result in a motion, agreement, or court order for ongoing monitoring. However, many questions then arise. For example, how long should the monitoring extend? Should it include both alcohol and drugs? What type of drug monitoring method should be used (urine/hair/SCRAM/Soberlink, etc.)? 

In general, consulting with a drug testing specialist may be helpful to determine which testing protocol should be used. At minimum, the testing protocol should specify:   

• The length of time of the testing; 
• The type of testing that will be used;
• The frequency of testing; 
• What will happen if there is a missed or failed test;
• Who the drug test reports will be sent to.

Furthermore, if there is concern around child exposure to drugs, hair follicle testing of the child may be the most accurate procedure to scientifically document the exposure. New research demonstrates that exposure to cocaine, marijuana, and methamphetamine can be better detected in hair samples of children than in urine samples. In many states, child exposure to drugs is considered child neglect/abuse, therefore the testing can be very informative and have legal relevance. 

Step 3 – Drug & Alcohol Treatment

Positive alcohol/drug test results typically lead to a request for treatment. There are multiple research-informed and evidenced-based treatment types for addiction. These include motivation enhancement therapy, cognitive behavioral therapy, mindfulness therapy, 12-step, and others. 

The treatment selection should match the severity of the abuse issue. For example, milder forms of drug abuse generally respond well to harm reduction treatment, cognitive-behavioral therapy, motivation enhancement therapy and mindfulness therapy. Moderate to severe forms of abuse will generally benefit from 12-step attendance and more intensive interventions that will target personality vulnerabilities and impulsivity.  If a litigant has repeatedly failed treatments, a long-term inpatient treatment may be needed.

For the child, s/he will also need treatment and support to help cope with the stressors of having a parent who abuses drugs. The treatment should incorporate developmentally appropriate education about drug abuse. In addition, when the parent sustains abstinence, the parent should participate in parent-child therapy sessions to help rebuild trust and the parent-child relationship. 

Substance abuse allegations can be overwhelming to the court. The frequency, severity, and risks of the allegations are often high.  Historically, information and resources to address this issue have been limited, especially when child exposure allegations are raised. Fortunately, research has provided information on the optimal methods to gather information to rule in or out the veracity of the allegation. Through a combination of appropriate drug testing (parent and child) and thorough, research informed inquiry and investigation, these allegations can be more easily addressed.

References:

Thomas K. Greenfield; Yu Ye; Jason Bond; William C. Kerr; Madhabika B. Nayak; Lee Ann Kaskutas; Raymond F. Anton; Raye Z. Litten; Henry R. Kranzler. (2014) Risks Of Alcohol Use Disorders Related To Drinking Patterns In The U.S. General Population. Journal of Studies on Alcohol and Drugs. 75(2), 319–327.

Witkiewitz K, Lustyk MK, & Bowen, S. (2013) Retraining The Addicted Brain: A Review Of Hypothesized Neurobiological Mechanisms Of Mindfulness-Based Relapse Prevention. Psychology of Addictive Behaviors. 27(2):351-65.

Witbrodt, Jane; Ye, Yu; Bond, Jason; Chi, Felicia; Weisner, Constance; Mertens, Jennifer. (2014) Alcohol And Drug Treatment Involvement, 12-Step Attendance And Abstinence: 9-Year Cross-Lagged Analysis Of Adults In An Integrated Health Plan. Journal of Substance Abuse Treatment. 46 (4), 412–419.

Barnett, Nancy P.; Meade, E. B.; Glynn, Tiffany R. (2014) Predictors Of Detection Of Alcohol Use Episodes Using A Transdermal Alcohol Sensor. Experimental and Clinical Psychopharmacology. 22 (1), 86-96.

Drs. Eric Frazer and Linda Smith are forensic psychologists with more than two decades of expertise in child custody matters. They are co-founders of Child Custody Analytics, LLC, which enables family lawyers to access psychological information simply and efficiently through their online platform. For more information visit: childcustodyanalytics.com