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The Consequences of Drug Use / Abuse in Virginia Abuse and Neglect Cases

The Consequences of Drug Use / Abuse in Virginia Abuse and Neglect Cases

By Buta Biberaj, Esq.

Biberaj & Snow P.C.

7 East Market Street

Suite 102

Leesburg, VA 20176

(703) 779-2000 Telephone

(703) 779-1025 Facsimile

[email protected]

http://www.Biberaj-Snow-Law.Com

SUBSTANCE EXPOSED INFANTS

The Code of Virginia § 63.2-1509B requires DFS to accept as valid a report that a newborn infant may have been exposed to controlled substances prior to birth.

A. MANDATED REPORTING OF SUBSTANCE EXPOSED INFANTS

22VAC40-705-40(A)(4) Pursuant to § 63.2-1509B of the Code of Virginia, certain specified facts indicating that a newborn infant may have been exposed to controlled substances prior to birth or a positive drug toxicology of the mother indicating the presence of a controlled substance are sufficient to suspect that a child is abused or neglected. A diagnosis of fetal alcohol syndrome is also sufficient. Any report made pursuant to § 63.2-1509B of the Code of Virginia constitutes a valid report of abuse or neglect and requires a child protective services investigation or family assessment, unless the mother sought treatment or counseling as required in this section and pursuant to § 63.2-1505 B of the Code of Virginia.

1.0 Physicians Required to Report Substance Exposed Newborn Infants

The Code of Virginia requires attending physicians to make a report of abuse or neglect when there is reason to suspect that a mother exposed a newborn infant to controlled substances during the pregnancy. The Code of Virginia specifically delineates four circumstances indicating a reason to suspect that a newborn infant was exposed to a controlled substance during pregnancy:

  1. A blood or urine test of the infant or mother conducted within 48 hours of the infant’s birth indicates the presence of a controlled substance.

  2. Within 48 hours of the infant’s birth, the attending physician finds that the infant was born dependent on a controlled substance and demonstrated withdrawal symptoms.

  3. Within seven days of the infant’s birth, the attending physician diagnoses the child as having an illness, disease or condition which, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance.

  4. Within seven days of the child’s birth, the attending physician makes the diagnosis that the child has fetal alcohol syndrome attributable to in utero exposure to alcohol.

2.0 Physician and Hospital Responsibilities

2.1 Report to CPS

Whenever a physician makes a finding of one of the four circumstances above, the physician must make a report to CPS immediately or at least within 72 hours of making the finding.

B. CPS RESPONSE TO SUBSTANCE EXPOSED INFANT REFERRALS

Facts indicating that the child was exposed to controlled substances prior to birth are sufficient, in and of themselves, to suspect that the child is abused or neglected. Therefore, any report made pursuant to the Code of Virginia § 63.2-1509B constitutes a valid report of abuse or neglect and requires a CPS response.

1.0 Initial Assessment and Contacts

22VAC40-705-40(A)(4)(c): When a report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509B of the Code of Virginia, then DFS must immediately assess the infant's circumstances and any threat to the infant's health and safety. Pursuant to 22VAC40-705-110 A, DFS must conduct an initial assessment.

22VAC40-705-40(A)(4)(d): When a report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509B of the Code of Virginia, then DFS must immediately determine whether to petition the JDR court for any necessary services or court orders needed to ensure the safety and health of the infant.

2.0 Exception to Initiating or Completing the Investigation or Family Assessment

22VAC40-705-40(A)(4)e. Within the first 5 days of receipt of a report made pursuant to §63.2-1509 A of the Code of Virginia, DFS shall invalidate the complaint if the following two conditions are met: (i) the mother of the infant sought substance abuse counseling or treatment during her pregnancy prior to the infant's birth and (ii) there is no evidence of child abuse and/or neglect by the mother after the infant's birth.

(1) DFS must notify the mother immediately upon receipt of a complaint made pursuant to §63.2-1509 A of the Code of Virginia. This notification must include a statement informing the mother that, if the mother fails to present evidence within 5 days of receipt of the complaint that she sought substance abuse counseling/treatment during the pregnancy, the report will be accepted as valid and an investigation or family assessment initiated.

(2) If the mother sought counseling or treatment but did not receive such services, then DFS must determine whether the mother made a substantive effort to receive substance abuse treatment before the child's birth. If the mother made a substantive effort to receive treatment or counseling prior to the child's birth, but did not receive such services due to no fault of her own, then DFS should invalidate the complaint or report.

(3) If the mother sought or received substance abuse counseling or treatment, but there is evidence, other than exposure to a controlled substance, that the child may be abused or neglected, then DFS may initiate the investigation or family assessment.

If the mother sought or received substance abuse counseling or treatment, but there is evidence, other than exposure to a controlled substance, that the child may be abused or neglected, then DFS may initiate the investigation or family assessment.

22VAC40-705-40(A)(3)(i). Facts indicating that the infant may have been exposed to controlled substances prior to birth are not sufficient, in and of themselves, to render a founded disposition of abuse or neglect. DFS must establish, by a preponderance of the evidence, that the infant was abused or neglected according to the statutory and regulatory definitions of abuse and neglect.

C. A PETITION FOR ABUSE OR NEGLECT MAY BE FILED WITH THE COURT SOLELY ON THE BASIS THAT THE INFANT WAS SUBSTANCE-EXPOSED (§16.1-241.3).

Code §16.1-241.3. Newborn children; substance abuse. Upon the filing of a petition, within twenty-one days of a child's birth, alleging that an investigation has been commenced in response to a report of suspected abuse or neglect of the child based upon a factor specified in subsection B of §63.2-1509, the court may enter any order authorized pursuant to this chapter which the court deems necessary to protect the health and welfare of the child pending final disposition of the investigation pursuant to Chapter 15 63.2-1500 et seq.) of Title 63.2 or other proceedings brought pursuant to this chapter. Such orders may include, but shall not be limited to, an emergency removal order pursuant to § 16.1-251, a preliminary protective order pursuant to § 16.1-253 or an order authorized pursuant to subdivisions 1 through 4 of subsection A of § 16.1-278.2. The fact that an order was entered pursuant to this section shall not be admissible as evidence in any criminal, civil or administrative proceeding other than a proceeding to enforce the order.

The order shall be effective for a limited duration not to exceed the period of time necessary to conclude the investigation and any proceedings initiated pursuant to Chapter 15 (§63.2-1500 et seq.) of Title 63.2, but shall be a final order subject to appeal.

1.1 Petition Must Allege Substance-Exposed Infant. The local department must state in the petition presented to the court that a CPS investigation or family assessment has been commenced in response to a report of suspected abuse or neglect of the child based upon a factor specified in § 63.2-1509 B of the Code of Virginia.

2.0 The Court’s Authority to Issue Orders. The court may enter any order authorized pursuant to § 16.1-226 et seq. which the court deems necessary to protect the health and welfare of the child. The court may issue such orders as an emergency removal order pursuant to § 16.1-251, a preliminary protective order pursuant to § 16.1-253 or an order authorized pursuant to § 16.1-278.2.A.

3.0 Any Court Order Effective Until Investigation or Family Assessment is Concluded.

Any court order issued pursuant to § 16.1-241.3 is effective pending final disposition of the investigation or family assessment pursuant to § 63.2-1500 et seq. The order is effective for a limited duration not to exceed the period of time necessary to conclude the investigation or family assessment and any proceedings initiated pursuant to § 63.2-1500 et seq.

D. CPS Ongoing Services to Families with Substance Exposed Infants

22VAC40-705-40 (A)(3)(j). The local department may provide assistance to the mother in locating and receiving substance abuse counseling or treatment.

If DFS determines that services are needed to prevent child abuse and neglect and the risk assessment is high or moderate in a founded investigation or family assessment, a case may be opened for services.

[Copyright Notice: Please note - this information is the work product of Buta Biberaj, Esquire. Reprinting or circulation is forbidden.]

This is intended as a brief introduction to the law and facts provided herein and IS NOT deemed to be legal advise. Please consult with an attorney for case specific advise and information.

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