People v. Lawrence O.

Opinion

HALVONIK, J. 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 home daily before the birth and later reports compiled from the probation department’s weekly visits revealed that T. O. and his two-year-old brother, W. O., were receiving excellent physical care in the home, that the home was well kept and adequately furnished, that both parents were deeply concerned about their children and that there was a warm and affectionate family relationship. The probation department recommended that T. O. be adjudged a dependent child and permitted to remain in the home. The recommendation was followed by the court which also ordered that the parents not use or possess narcotics, marijuana or dangerous drugs and required them to submit to searches and chemical testing.

On March 3, 1978, Maria Alvarez, a probation officer, accompanied by three policemen, made an unannounced visit to appellants’ residence. Apparently this was a nighttime visit because the father and two children were sleeping; the mother opened the door. The family was confined to the living room while the officers searched the house. Within minutes, the mother suffered a convulsion, dropped T. O. and fell to the floor. The fire department was called, the mother was removed and the search continued. Cocaine was found in a metal strongbox on a closet shelf and marijuana was found in a box in a kitchen drawer. The parents were arrested and the children were taken to a shelter. Ms. Alvarez, in her report of the incident, said that the father told police officers that his wife had had a similar seizure the year before which was the product of a cocaine overdose and that his wife had taken cocaine the day before the search. The report, which was considered by the court below, concluded with the recommendation that the children be removed from the home.