People v. Lawrence O.

The parents of two minor children appeal an order removing them from the home. The court below found that “the children are happy, content, clean, overall very well cared for, and that the parents are concerned parents.” Nonetheless, because cocaine and marijuana were discovered at their residence, the court concluded that “having those drugs in the home leads to the possibility of harm or injury to these children . . . [a] . . . possibility in this case [that] might be remote . . .” but a possibility sufficient to justify its order. We disagree and reverse.

*908 The beginning of appellants’ problems can be traced to the period when the mother, pregnant with T. O., told her doctor that she had been ingesting heroin through her nose for the past few months. Although she was not addicted, her doctor, surprisingly, placed her on a methadone maintenance program. According to the meager record before us, she was treated with this highly addictive drug because of a heart condition. When T. O. was bom four months later he exhibited symptoms of withdrawal and was referred to the juvenile probation department.

The reports of the counselor of the methadone program who visited the…

I dissent. Our function is to determine if there was substantial evidence to support the trial court’s finding. (People v. Jenkins (1970) 3 Cal.App.3d 529 [ 83 Cal.Rptr. 525 ]; In re Robert P. (1976) 61 Cal.App.3d 310 [ 132 Cal.Rptr. 5 ].)

To remove a child from the custody of its parents the court must make a finding of parental unfitness, supported by evidence showing that parental custody would actually harm the child. (In re B. G. (1974) 11 Cal.3d 679 [ 114 Cal.Rptr. 444 , 523 P.2d 244 ].) The termination of parental rights requires clear and convincing evidence to support the required finding of unfitness. (In re Robert P., supra; but see In re Christopher B. (1978) 82 Cal.App.3d 608 [ 147 Cal.Rptr. 390 ].)

With these rules to guide us, it is clear that there is ample evidence to support the trial court’s action. The record reveals that the mother of the minors, W. O. and T. O., had been a heroin user while pregnant with T. O. It was during this pregnancy that she was placed on methadone. When T. O. was made a dependent child of the court, prior to these proceedings, the placement of the child in the home of the parents required that the parents not use or possess…