C. W. v. Ga. Dep't of Human Servs., A19A2335
Decision Date | 06 December 2019 |
Docket Number | A19A2335 |
Citation | 353 Ga.App. 360,836 S.E.2d 836 |
Parties | C. W. v. GEORGIA DEPARTMENT OF HUMAN SERVICES. |
Court | Georgia Court of Appeals |
Lawrence Allyn Stockton Jr., for Appellant.
Christopher Michael Carr, Penny Hannah, Atlanta, Richard Wellington Highsmith, for Appellee.
We granted C. W.’s application for discretionary review of a superior court order that reinstated the decision of the Division of Family and Children Services of the Department of Human Services ("DFCS") to include C. W.’s name on the central child abuse registry for prenatal abuse because of her use of marijuana while pregnant. See OCGA §§ 49-5-180 (5) (2018), 49-5-181 (a) (2018). C. W. argues that under the language of the governing statutes, marijuana is not a "controlled substance," and so a mother’s use of marijuana during pregnancy does not amount to prenatal abuse.
To its credit, DFCS concedes that C. W. is correct. We agree, so we reverse.
Ga. Dept. of Human Svcs. v. Steiner , 303 Ga. 890, 890-891 (I), 815 S.E.2d 883 (2018).
DFCS placed C. W.’s name on the child abuse registry based on its determination that she had committed child abuse by unlawfully using a controlled substance while she was pregnant. The child abuse investigator stated in the Notice of Inclusion mailed to C. W. that C. W. was The investigator testified that C. W. had told him that, at the suggestion of a doctor and a midwife, she had used marijuana to help alleviate nausea and vomiting.
C. W. petitioned for a hearing under OCGA § 49-5-183 (c) to challenge the inclusion of her name on the child abuse registry. An administrative law judge ordered DFCS to remove C. W.’s name because under the plain language of the statutes at issue, marijuana is not a controlled substance, so a mother’s use of marijuana while pregnant does not amount to prenatal abuse.
DFCS appealed the administrative law judge’s decision to the superior court. The superior court reversed because THC, the substance identified in the infant’s meconium, is a controlled substance under OCGA § 16-13-21 (4). C. W. then filed her application for discretionary appeal.
The Act establishing the child abuse registry provides that child abuse includes "endangering a child," which can include "prenatal abuse" as defined in OCGA § 15-11-2. OCGA §§ 19-7-5 (b) (4) (C) & (b) (6.1) (D) ; 49-5-180 (4). OCGA § 15-11-2 defines "prenatal abuse" as:
exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as such term is defined in Code Section 16-13-21, which results in: (A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn’s body, blood, urine, or meconium that is not the result of medical treatment; or (B) Medically diagnosed and harmful effects in a newborn’s physical appearance or functioning.
OCGA § 15-11-2 (56). So as relevant here, prenatal abuse that amounts to endangering a child requires proof that, among other things, a pregnant woman used a controlled substance as defined in OCGA § 16-13-21.
OCGA § 16-13-21 defines "controlled substance" as "a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 CFR Part 1308." OCGA § 16-13-21 (4). Thus, under the plain language...
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...Ga. at 378, 829 S.E.2d at 162.86. Id. at 379, 829 S.E.2d at 162-63.87. Id. at 379, 829 S.E.2d at 163. (emphasis in original)88. Id. 89. 353 Ga. App. 360, 836 S.E.2d 836 (2019).90. Id.91. Id. at 360-61, 836 S.E.2d at 836-37; O.C.G.A. § 49-5-183(c) (2019).92. Id. at 361, 836 S.E.2d at 837.93.......