The county department of social services filed a dependency petition, alleging that the mother (Toni D.) had been guilty of physical abuse of a child because she drank while she was pregnant with C.W.

The child was born prematurely at 26 weeks, and required oxygen and a feeding tube. A neurologist present at the birth testified that the child had a small head, which was a "direct indicator" that the child had an underdeveloped brain. The neurologist in turn attributed this to FAS. The mother had consumed two quarts of beer daily during her pregnancy, as well as using other drugs.

Under the statute relied on by the county, it was required to show that physical injury was caused by a "single act of abuse." The court held that this standard could not be met, because it was "the cumulative effects" of alcohol use, not a single drink, that had interfered with the development of C.W.'s brain.

The court suggested the county might be able to proceed under a different state statute.

Diagnosing FAS based solely on the size of a child's head, even given a mother's history of alcohol abuse, is not consistent with current medical practice.