Department of Social Services (DSS)
Provides DSS policies, procedures, and more.
Statutes & Regulations
Child Abuse & Neglect Investigations
- Cal. Pen. Code § 11165.2 — Definitions of child neglect.
- Cal. Pen. Code § 11165.3 — Definitions of child neglect. (eff. January 1, 2005)
Under California law, “neglect” is defined as “the negligent treatment or the maltreatment of a child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare” regardless of whether it was an intentional act or “omission.”
There are two further meanings of child neglect under California law: severe neglect and general neglect. “Severe neglect” is when a parent or legal guardian “willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered” or physical or mental suffering. Whereas “general neglect” is the failure of a parent or guardian “to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.”
- Cal. Pen. Code § 11165.7 — Mandated reporters.
List of professionals required by law to report known or suspected child abuse or neglect to a county or state child welfare agency in California.
- Cal. Pen. Code § 11166 — Standards for mandated reports.
Provides that mandated reporters need only have “reasonable suspicion” that a child is being abused or neglected to be obligated to file a report with CPS authorities.
- Cal. Pen. Code § 11165.13 — Infants exposed to substances; reporting.
California has one of the most well-defined standards in the country for reporting newborns who test positive for drugs. The law states that “a positive toxicology screen at the time of the delivery of an infant” is not, by itself, sufficient to require a report of child abuse or neglect, though it may indicate the need for further assessment of the family’s needs. A report of a substance-exposed infant is mandated only when “other factors are present that indicate risk to a child.” If a report is mandated, it is made only to a county welfare or probation department and not to a law enforcement agency.
- Cal. Pen. Code § 11165.12 — Unfounded, substantiated & inconclusive reports.
- Cal. Code Regs. tit. 31, § 125 — Non-emergency intake and investigation.
The CFSD investigator must decide whether a report alleging child abuse or neglect is unfounded (false), substantiated (more likely than not to be true), or inconclusive (not supported by the evidence). They must also assess the report for potential situations that may give the jurisdiction over the child to the juvenile court, and DSS has the discretion to file a “dependency” petition with the court, which can lead to changes in custody.
Administrative Appeals and Records
- Cal. Penal Code § 11169 — Substantiated reports; Child Abuse Centralized Index.
- Cal. Code Regs. tit. 31, § 501.4 — Child Abuse Centralized Index (CACI).
- Cal. Code Regs. tit. 31, § 021 — CACI grievances, appeals and hearings.
County child welfare authorities must submit reports to the California Department of Justice regarding instances of child abuse or neglect which it “actively investigates” and finds substantiated. Cases forwarded to the DOJ are listed in the state’s Child Abuse Centralized Index (CACI). However, DSS regulations state an exception, and do not require such reporting when the only allegation is general neglect, or an infant’s positive toxicology screen. Such cases should not be recorded in CACI. Upon notice from DSS that his or her name will be listed in CACI, a guardian has 30 days to request a grievance hearing to contest the decision. If the request is not submitted within 30 days, the individual has waived his or her right to appeal the CACI listing.
Juvenile Court Proceedings
- Cal. Welf. & Inst. Code § 300 — Jurisdiction over abused & neglected children.
Law defining children who fall under the jurisdiction of the juvenile court due to abuse or neglect. A child in California must be deemed “dependent” under one of these circumstances in order for the juvenile court to act. These definitions do not require that a child have already suffered harm as a result of parental conduct; a “substantial risk” of “serious physical illness or injury,” or “serious emotional damage” is enough for jurisdiction. Subsection (b) contains specific reference to “the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s…substance abuse,” a provision that was interpreted within the context of medical marijuana use in the 2012 case, In re Drake M. (see below).
State Marijuana Laws
- Cal. Health & Safety Code § 11357(b) — Possession of 28.5 grams or less. (eff. Jan. 1, 2011)
Possession of 28.5 grams or less of marijuana is a civil infraction punishable by $100. The fines increase for subsequent offenses, and can range up to $500, if possession occurs within 1,000 feet of a school, in a correctional facility, or by a minor.
- Cal. Health & Safety Code § 11362.5 — Compassionate Use Act (Prop 215) (approved Nov. 5, 1996)
- Cal. Health & Safety Code § 11362.7 — Medical Marijuana Program (S.B. 420) (eff. Jan. 1, 2004)
California’s original medical marijuana law was passed by voters in 1996, and modified in 2003 by the legislature. As one of the earliest states in the country to pass cannabis reform, these laws protect qualified patients and their caregivers from arrest and prosecution by state law enforcement, but not civil penalties. Nevertheless, California patients and caregivers who parent minor children have faced non-criminal CPS involvement with county child welfare authorities, as well as criminal charges filed by the local DA for child endangerment where there is cultivation or when children are being breastfed (especially in Butte and Tehama counties).
All California Laws & Penalties (NORML)
In re Alexis E., 90 Cal. Rptr. 3d 44 (Cal. Ct. App. 2009). Father appealed juvenile court’s dependency jurisdiction over his children — that is, the court’s right to decide matters of custody and parenting due to abuse and/or neglect — and contested its finding that his history of substance abuse and current medical marijuana use placed the children at risk of harm. He argued that the state was forcing him to choose between his legal use of medical marijuana and his right to reunite with his children. The Court of Appeal agreed that a parent’s use of marijuana, “without more,” is not enough to bring the child within dependency jurisdiction of the juvenile court. However, it found that, in this case, the father’s history of domestic violence would have been enough to allow the court to assert dependency jurisdiction, and upheld the order continuing custody with their mother.
In re Drake M., 149 Cal. Rptr. 3d 875 (Cal. Ct. App. 2012). In this case, a juvenile court in Los Angeles County asserted dependency jurisdiction over Drake M., who was referred to the county’s Department of Children & Family Services at nine months old. His father, Paul, used marijuana therapeutically for his arthritis, but did not do so in front of his child. The DCFS social worker reported that Drake appeared healthy and “clean without marks or bruises.” At the request of DCFS, Paul agreed to “do whatever was necessary” to prevent Drake’s removal from the home, and submitted to a drug test, which was positive for cannabinoids. The juvenile court awarded Paul custody of Drake, but ordered Paul to undergo weekly random drug tests, and to attend parenting classes and drug counseling to “alleviate his drug problem.” On appeal, Paul successfully challenged that order, and the court ruled that DCFS had not proven that Paul was a “substance abuser,” and that his legal medical marijuana use, without more, did not support the order against him.
In re Destiny S., 148 Cal. Rptr. 3d 800 (Cal. Ct. App. 2012). 11-year-old Destiny came to the attention of DCFS via an anonymous call that “alleged sexual abuse by an unknown perpetrator.” The local police and DCFS determined the sexual abuse allegation “unfounded,” but over the course of that investigation, Destiny’s mother Rosemarie H. admitted to using marijuana on a weekly basis, though not around her daughter. DCFS filed a dependency petition based on Rosemarie’s marijuana use, and after the first hearing, Destiny remained in her mother’s custody, though Rosemarie was required to submit to weekly drug tests. When Rosemarie tested positive, her daughter was removed from her custody and placed with her grandmother. At the second hearing three months later, the court found “uncontradicted evidence” that Destiny was a happy and healthy preteen, “well-cared for, clean [and] well-fed,” and that Rosemarie had tested negative on all drug tests during that time period. Nevertheless, the court decided by clear and convincing evidence that Destiny was “at risk of substantial and serious physical harm,” if she were returned to Rosemarie’s custody. The court hypothesized that “when one is using drugs, one often has a difficult time being awake,” and that her mother’s marijuana use was the reason for Destiny having been tardy to class the previous year. The juvenile court’s judgment concluded that Rosemarie was “in denial of her drug habit,” and that she had failed to protect her daughter from the effects of secondhand smoke, based on Destiny’s testimony that she could occasionally smell cannabis smoke, “but it’s not very much.” Rosemarie appealed the juvenile court’s decision, and won back custody of her daughter. The Court of Appeal ruled that DCFS had failed to prove its claim that Destiny was in imminent risk of physical harm justifying juvenile dependency jurisdiction. Relying on In re Alexis E., holding that parental drug use alone is not enough to assert dependency jurisdiction, the Court of Appeal pointed to the total lack of evidence showing that Rosemarie’s use of marijuana posed any risk of Destiny suffering physical harm. The dependency jurisdiction order was vacated and Destiny was returned to her mother.
Last updated: December 7, 2013 at 15:23 pm