Child Services Can’t Remove Kids for Parental Medical Marijuana Use, Court Says

A toddler is back in the unsupervised care of his Southern California father after an appeals court ruled that the state cannot remove a child from their home because the parent uses medical marijuana.

The boy, who was 14 months old at the time, became a ward of the court in 2011 after the Los Angeles County Department of Children and Family Services — acting on an anonymous tip — discovered his father is a medical marijuana user.

Despite testifying that the boy, Drake M. (last names in family law cases are redacted) was fed and well-cared for and the father, Paul M., was gainfully employed, the local DFCS argued that Paul’s medical marijuana use meant he was caring for his child while stoned and that Drake was at serious risk of harm.

A lower court agreed. Only after appealing his case — in which no record of drug abuse or neglect to the child was presented — to a higher court did Paul M. get his son back.

Drake, who turned 2 in August 2010, was referred to DFCS in May 2011 by someone who disliked his dad’s marijuana habits. It should be noted that only Drake’s mother had a history of drug abuse and run-ins with DFCS, not his father.

However, that initially did not work in his favor. Social workers who visited the home noted that Paul M. used marijuana to alleviate knee pain, which helped him work as a concrete mason. He did not smoke in front of his child, and waited at least four hours after using marijuana to pick Drake up from day care.

Paul had a valid recommendation from a physician for his marijuana, and submitted to DFCS drug testing. Not surprisingly, the testing came up positive for marijuana.

Although there was no evidence of harm or wrongdoing to Drake, a trial court ruled in October 2011 that Paul needed to undergo substance abuse and parental classes in addition to drug testing. He would also have to submit to further DFCS supervision to determine if he’d be able to keep his child.

Had DCFS been able to prove that Drake was at risk of harm or had suffered any harm, or that Paul “abused” — not “used” — drugs, the ruling would have stood. But on appeal, the lower court’s findings on Paul’s parental ability were tossed.

First, the difference between “use” and “abuse.” Simply put, drug abuse is use that interferes with life or work or causes harm to others, like a child. A bad hangover that causes someone to miss work? That’s drug abuse that’s not illegal — and possibly not quite enough for DFCS to get involved.

“DCFS needed only to provide sufficient evidence that father was a substance abuser in order for dependency jurisdiction to be properly found,” the court wrote. “DCFS failed to do so.”

Second, Paul testified that he never used marijuana in front of Drake, and that while he was smoking in his garage, Drake was in care of another parent or sibling or at day care. The appeals court also noted that there’s no impairment limit for marijuana in the Vehicle Code; ergo, merely having used marijuana sometime in the day is not proof of impairment (in contrast to states like Washington, which thanks to legalization measure I-502 now has a controversial impairment statute on the books). Therefore, last week the court ruled Paul does not need DFCS supervision and does not need drug and parental counseling.

What may prove most worrisome to medical marijuana users and advocates was that a complaint was initiated at all — and that a lower court took DFCS’s claims, which were not supported by data or fact, that Drake was at risk solely because his father had a recommendation to use cannabis.

That Paul stood up and fought back is the only reason why DFCS is not looking over his shoulder.

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