California Supreme Court Strikes “Tender Years Doctrine”

A 17-month-old boy was forcibly separated from his father following a single drug test indicating the use of cocaine when the child was not in his father’s care. The state of California claimed there is a “commonsense inference” that when a parent uses a substance their child is at substantial risk of serious harm. Additionally, California operated under a “tender years doctrine” that suggested when a child is under the age of 6, any evidence of substance use amounts to prima facie evidence of an inability to care for a child. 

upEND advisor Alan Dettlaff and other social workers submitted an amicus brief to the California Supreme Court arguing that the use of a substance should not be used to make any determinations about the safety of a child without other substantial evidence of direct harm. Further, the well-documented harms of family separation should be factors considered in these decisions. 

In a groundbreaking decision, the court agreed and struck down the “tender years doctrine,” stating:

“We reject this tender years presumption as inconsistent with the Legislature’s intent…The age of a child may bear upon whether substance abuse renders a parent or guardian unable to provide that child with regular care, and whether the child is thereby placed at substantial risk of serious physical harm or illness. But the statutory scheme does not allow courts to treat a showing of substance abuse as always being sufficient on its own to establish these other requirements for dependency jurisdiction, even when a young child is involved.”

The court went beyond just the tender years aspect, stating that substance use alone, in any case, is insufficient to warrant family separation and must be accompanied by evidence that the substance use renders the parent unable to care for the child and poses a substantial risk of harm.

This decision will reduce California’s ability to forcibly separate families and can provide a roadmap for other states to adopt similar policies aimed at keeping families together and reducing the reach of family policing.