Parental Substance Use as Child Abuse - Texas

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Citation: Fam. Code § 261.001 

'Abuse' includes the following acts or omissions by a person: 

  • Causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning
  • The current use by a person of a controlled substance as defined by the Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child
  • Causing, expressly permitting, or encouraging a child to use a controlled substance  

The term 'neglect' includes the acts or omissions by a person that places a child in or fails to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child.

Citation: Fam. Code § 161.001

In this section, the term 'born addicted to alcohol or a controlled substance' means the following:

  • A child who is born to a mother who during the pregnancy used a controlled substance, other than a controlled substance legally obtained by prescription, or alcohol
  • A child to whom after birth, as a result of the mother's use of the controlled substance or alcohol, the following applies:
    • Experiences observable withdrawal from the alcohol or controlled substance
    • Exhibits observable or harmful effects in the child's physical appearance or functioning
    • Exhibits the demonstrable presence of alcohol or a controlled substance in the child's bodily fluids 

 

The court may order termination of the parent-child relationship if the court finds, by clear and convincing evidence, the following:

 

  • That the parent has done the following:
    • Used a controlled substance in a manner that endangered the health or safety of the child, and did the following:
      • Failed to complete a court-ordered substance abuse treatment program
      • After completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance
    • Been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription
  • That termination is in the best interests of the child

Citation: Admin. Code Tit. 40, § 700.455

In this section, the term 'physical injury that results in substantial harm to the child' means real and significant physical injury or damage to a child that includes, but is not limited to, the following:

  • Any of the following conditions that occur in an infant under the age 1 because of the pregnant mother's use of alcohol or a controlled substance that was not lawfully prescribed by a medical practitioner, was lawfully prescribed as a result of the mother seeking out multiple health-care providers as a means of exceeding ordinary dosages, or was not being used in accordance with a lawfully issued prescription, if the mother knew or reasonably should have known she was pregnant:
    • A physician's written diagnosis of physical manifestations of fetal alcohol syndrome or fetal alcohol effect, which includes alcohol-related birth defects and alcohol-related neurodevelopmental disorder
    • A physician's written opinion that the newborn was harmed from in utero exposure to alcohol or a controlled substance
    • A physician's diagnosis of neonatal abstinence syndrome
  • Any of the following physical injuries to a child of any age caused by a person's use of a controlled substance other than prenatal use: illness; interference with normal physiological functions or motor coordination; or any other physical harm directly related to the person's current use, manufacture, or possession of the controlled substance

Citation: Admin. Code Tit. 40, § 700.465

'Neglectful supervision' is a subset of the statutory definitions of neglect that appear in Texas Family Code § 261.001(4).

In the case of prenatal use of alcohol or a controlled substance that was not lawfully prescribed by a medical practitioner, was lawfully prescribed as a result of the mother seeking out multiple health-care providers as a means of exceeding ordinary dosages, or was not being used in accordance with a lawfully issued prescription, the pregnant mother is responsible for neglectful supervision if the following apply:

  • The mother knew or reasonably should have known she was pregnant.
  • It appears that the mother's use endangered the physical and emotional well-being of the infant. 

It is not necessary that the infant actually suffer injury. 

For the limited purpose of this paragraph of this subsection, 'endangered' means that the pregnant mother's use exposed the infant to loss or injury or jeopardized the infant's emotional or physical health. 'Endangered' includes, but is not limited to, a consideration of the following factors: 

  • Evidence the mother extensively used alcohol or regularly or extensively used a controlled substance over the course of the pregnancy or in close proximity to the child's expected birth date
  • Evidence that the mother has an alcohol or drug addiction 
  • Evidence that the infant was at a substantial risk of immediate harm from the mother's use of alcohol or a controlled substance