Substance Abuse Effects on Family
Historically, decisions on conservatorship (parental custody) and even termination of the parent-child relationship have often occurred based on positive drug test results. Substance abuse effects on family – In some cases, courts and the Department of Family and Protective Services (CPS) have treated failure to test as a positive result. Legislative changes and recent appellate challenges are altering the landscape in family court litigation with respect to parents who test positive for drugs. Conservatorship proceedings have a much lower burden of proof and a less stringent standard of appellate review than termination cases. For this reason, a parent who tests positive for drugs has a much greater chance of losing custody or having access and possession restricted.
In a recent decision, a Houston Court of Appeals held that when Department of Family and Protective Services failed to prove drug use while the children were in the care of the father or that the children were harmed by the drug use, establishing use alone is not sufficient to support termination. There has to be evidence linking the drug use to the creation of an environment that endangers the physical or emotional well-being of the child or other evidence of harm coupled with the drug use. Certainly, the existence of other evidence of abuse or neglect could result in the loss of conservatorship or even parental rights. Nevertheless, when there is no other evidence of inappropriate parental activity, and no other evidence of abuse or neglect, the existence of positive drug tests, without evidence of a negative impact on a child, was not sufficient to support termination.
Recently, our attorneys have filed a challenge in the Texas Supreme Court, claiming that a court or jury should not be able to infer positive drug use when a parent refuses to test. Failure to test may be a violation of a Court Order and if so, this could create real trouble for a parent. But decisions as important as termination of the parent-child relationship or conservatorship should not be based upon speculation or conjecture.
At Connolly & Shireman, our knowledgeable attorneys have many years of expertise in cases involving alcohol and drug use and have been responsible for some of Texas’s most innovative court orders on the subject. If you are seeking help with a spouse or parent with alcohol or drug abuse issues, or are a parent in recovery seeking help to get back into the lives of your children, or if you are a parent facing claims made by CPS, the attorneys at Connolly & Shireman have special insight and experience to handle your family law matter.