California Court Of Appeal Rules That Medical Marijuana Use Is Not A Basis To Detain A Child From His Father
A major ruling from a California Court of Appeal in December means that a Father, who has no history of abuse or neglect regarding his young child, cannot be denied placement of his child solely because he uses legally prescribed medical marijuana. He also cannot be forced to participate in drug testing and parenting classes because of his marijuana use.
On May 24, 2011, Los Angeles County DCFS filed a petition in Juvenile Court. Alleging that “The child Drake [M. ‘s] father, Paul [M.], is a current user of legal marijuana which on occasion‘s [sic] renders the father incapable of providing regular care and supervision of the child. The father‘s drug use endangers the child‘s physical health, safety and well being, creates a detrimental home environment and places the child at risk of physical harm, [sic] and damage.”
With respect to mother, the petition, as amended, included allegations that she had a history of illicit drug use including amphetamine and marijuana which renders the mother periodically incapable of providing regular care and supervision of the child.
The child was placed with the Father, but he contested the allegation that his marijuana use essentially placed his child at risk. At the trial on the allegations regarding his marijuana use, DCFS argued that, based on father‘s testimony, he was under the influence of marijuana while caring for Drake, his child. Counsel for DCFS stated on the record, “He indicated that four or five times a week he uses marijuana. He then – eventually a number of hours later – goes and picks up the child, he‘s then home alone with the child. I think we quite well know that marijuana doesn‘t wear off in four hours. . . . It’s true I don’t have evidence that he smokes in the same room as the minor but that‘s not the primary issue. He is a regular caretaker for the child and is regularly under the influence of marijuana both legally, and admitted [that] he cannot be driving with the child. He would be subject to sanctions should he be driving with the child. . . . This father regularly tests dirty for marijuana. The notion he‘s not under the influence is ridiculous. He‘s legally over any indication that is allowed on any sort of driving limit. I think that the court can easily find that he’s regularly under the influence while caring for his child.”
DCFS provided no evidence, through expert testimony or otherwise, showing that four hours after smoking marijuana father was still under the influence of marijuana and was unable to operate a vehicle or care for a child. The trial court found that the allegations against father in the petition, as amended, were true. It ordered Drake be placed with father under DCFS supervision. Mother was allowed to live in the home on the condition that she submit to weekly random drugs tests and the results of such tests were clean. She was also ordered to comply with her counseling programs and take all prescribed medication. Family reunification services were ordered for the mother and family maintenance services were ordered for the father. Father was also ordered to avoid being under the influence of marijuana while providing care for Drake. He was also ordered to submit to random drug testing and to attend parenting courses and drug counseling sessions. Father appealed the court’s orders.
COURT OF APPEAL’S GROUND-BREAKING RULING:
The court ruled that although the child’s father uses medical marijuana pursuant to a physician‘s recommendation, there is nothing in the record to indicate that he has a substance abuse problem. Additionally, there is nothing in the record to indicate that his use of medical marijuana led to the finding of dependency jurisdiction as we have found the record. (It was the Mother’s issues of substance abuse and neglect that led to the Juvenile Court’s intervention).
Without evidence that the Father’s medical marijuana use presented a risk to the child, the Court of Appeal ruled that the trial court‘s ordering father to take random drug screens and to participate in drug counseling could not reasonably be designed to eliminate mother’s substance abuse and mental illness, which are the remaining conditions from which dependency jurisdiction was obtained and, thus, such orders were an abuse of discretion. The court then reversed the Juvenile Court’s orders that the Father participate in parenting classes and drug testing.
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