Brooklyn Law Review
The response of the American legal system to parents who misuse drugs or alcohol is draconian. In most states a showing of harm to the child is a prerequisite for coercive intervention in child abuse or neglect proceedings. But legislatures and courts frequently assume that parental alcohol or drug misuse inevitably entails harm to the child. As a result, in judicial proceedings involving parental substance abuse, a summary finding of parental misconduct too frequently replaces a concrete examination of whether harm to the child has occurred, or is likely to occur. In short, the assumption that parents who misuse drugs or alcohol harm their children allows courts hearing neglect cases to curtail or circumvent the process through which harm to the child is identified and evaluated. Consequently, coercive state intervention in such cases is both more prevalent and more harsh than it should be. The result is social injustice, inflicted primarily upon poor people, and upon their children. In order to alleviate this injustice, changes are needed in child abuse and neglect statutes dealing with parental substance misuse, in the way courts interpret and use statutory authorizations to intervene in such cases, and in the child welfare system as a whole ....
This Article concentrates on cases of parental substance misuse involving children who are neglected, but whose basic health and welfare are not in clear danger. Only by way of comparison does this Article discuss the horrible cases, the cases in which serious harm to the child is demonstrable. Thus, although abuse and neglect are generally discussed together, this Article focuses on cases of neglect alone.
Janet L. Dolgin,
The Law's Response to Parental Alcohol and 'Crack' Abuse, 56 Brook. L. Rev. 1213
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/437