SUMMARY: Evidence proving mere possession of crack cocaine by the father without any showing that it affected the child does not establish a definite risk of future harm, and adjudication of the child on this basis was therefore improper.
Carrdale II, DOB 10/08, was removed from the home in May 2009. In its original petition, the State alleged his father, Carrdale, put Carrdale II at risk of harm due to his use of alcohol and/or controlled substances, engagement in domestic violence with the mother and failure to provide stable housing. At the adjudication hearing, the State withdrew all allegations except that claiming that Carrdale was found in possession of .3 grams of crack cocaine in March 2009. The juvenile court, finding that such possession subjects Carrdale to arrest and incarceration and inability to care for Carrdale II, found Carrdale II to be within the meaning of 43-247(3)(a). Carrdale appealed.
The Nebraska Court of Appeals reversed the adjudication. The Court of Appeals noted that this case is similar to In re Interest of Brianna B. & Shelby B., ________, where the court held that mere consumption of alcohol without a showing of impact on the children was not a sufficient basis for adjudication, but also noted that possession of alcohol is not illegal. Although incarceration of a parent can prevent the parent from caring for the child, there was no evidence in this case that Carrdale had been convicted and/or incarcerated. Furthermore, there was no evidence that Carrdale put the child at risk of harm; for example, that he had a history of drug use or prior offenses, that the child was present when Carrdale was in possession of the drug or that the child was affected by Carrdale’s actions. The Court of Appeals explained that “[b]ased only upon an exhibit showing that Carrdale had a controlled substance in his possession in March 2009, and without evidence of charges filed or a sentence imposed or any impact on the juvenile, the risk of harm to the juvenile cannot be considered ‘definite’.” 18 Neb. App. at 354.
Judge Cassel filed a dissenting opinion stating that it is reasonable to assume that possession of crack cocaine will lead to injury to the child given overwhelming evidence found in juvenile cases, governmental reports and local and national studies showing the harmful effects of parental drug use on their children. He noted that it is a reasonable inference to conclude that Carrdale was using substances based on his possession of them.