Had Their Child Taken AwayThere aren’t many things that make me sadder than hearing stories about parents having their children taken away. Unfortunately, that was the case with a family in California in May 2011. The family was reported for being marijuana consumers with a child in the residence, which resulted in a visit from the California Department of Children and Family Services (DCFS). During the visit, the child in question’s parents provided information that they were medical cannabis patients. After a battle with DCFS, the child was placed into protective custody.
Fortunately, the case was appealed, and the parents won on appeal. The court ruled that DCFS failed to show that the parents were unable to provide regular care for the child in question due to medical marijuana use. Medical marijuana use alone is not sufficient to take a child away. I truly hope that this ‘de facto’ policy of DCFS is changed, and that no more parents and children have to suffer. Below is the main part of the court’s ruling, which can be found in it’s entirety at this link. There doesn’t seem to be much press about this, so please pass along the information so that DCFS can’t sweep this under the rug!
“The appellate court found that the record did not support the finding that the children would be at substantial risk of detriment if returned to that mother based on her use of marijuana. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1346.) Additionally, there was no evidence presented to establish Mother displayed clinical
substance abuse, that is, [a]maladaptive pattern of substance use leading to clinically significant impairment or distress . . . occurring within a 12-month period.’ (Am. Psychiatric Assn., Diagnostic & Statistical Manual of Mental Disorders (4th ed. 2000) p. 199.) No medical professional diagnosed Mother as having a substance abuse problem, no medical professional testified at the 18-month hearing, and there was no testimony of a clinical evaluation. (Ibid.) The court went on to state, [w]e have no clinical evaluation, no testing to indicate [substance abuse], just the opinion of the mother’s social worker and a therapist.’ [Citation.] (Ibid.) Finding the evidence insufficient, it granted the writ petition. (Id., at p. 1347.)”
“At the time of the hearing, Drake was only 14 months old. DCFS needed only to produce sufficient evidence that father was a substance abuser in order for dependency jurisdiction to be properly found. DCFS failed to do so. First, there was no evidence in the record that father failed to fulfill major role obligations at work. Indeed the opposite was true. DCFS reported that father had been employed for many years and appears capable of providing for the child Drake’s basic needs. Next, there was no evidence in the record that father suffered from recurrent substance-related legal problems. Rather, the record shows that father possessed a valid recommendation from a physician to use marijuana for treatment of his chronic knee pain. There was no evidence in the record that father had a criminal history. Despite DCFS’s allegations, there was no evidence in the record that father was under the influence of marijuana while driving his vehicle. There was no evidence showing that father was still under the influence of marijuana when he picked up Drake from day care and cared for him alone, nor was there evidence showing that a person
remains under the influence of marijuana four hours after smoking it from which it could be inferred that father was still under the influence. As we noted earlier, counsel for DCFS stated, with respect to father’s driving to pick up Drake four hours after smoking marijuana, He would be he would be subject to sanctions should he be driving with the child. . . . 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, however, failed to provide any evidence such as police reports or other documentation, any controlling legal authority, any expert testimony, or any witness testimony to support this conclusion. California’s Vehicle Code does not specify a legal limit for marijuana (as it does for blood alcohol) at which a person is subject to arrest
for driving under the influence (DUI). (See, generally, Veh. Code, § 23152.) Instead, under the influence within the meaning of the Vehicle Code, [means]the . . . drug must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his [or her]faculties. [Citations.]’ (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) Thus, specific evidence showing actual impairment rather than how much time has passed since
a person has smoked marijuana is necessary to show a person is under the influence of marijuana. No such evidence was provided here. Finally, there was no evidence in the record that father continued to use marijuana in the face of having persistent or recurrent social or interpersonal problems caused or exacerbated by marijuana.”
“Our analysis of the record shows that it contains no evidence that father has a substance abuse problem. Even DCFS’s attorney conceded at oral argument before us that she could not say, based on the evidence, that father was abusing marijuana. As a result, the trial court’s finding that jurisdiction based on this prong of section 300, subdivision (b), was not supported by the evidence.
b. There Was No Evidence Showing That Father Failed or Was Unable To Adequately Supervise or Protect Drake
Despite there being no evidence that father has a substance abuse problem, a finding of jurisdiction based on father’s use of marijuana may have been proper if the evidence showed that, as a result, father failed or was unable to adequately supervise or protect Drake. DCFS, who had the burden of proving jurisdictional facts by a preponderance of the evidence‖ (In re D.C., supra, 195 Cal.App.4th at p. 1014), failed to prove such a link, however. Here, the record shows that father possessed a valid recommendation from a physician to use marijuana for treatment of his chronic knee
pain. His continuing usage and testing positive for cannabinoids on drug screens, without more, is insufficient to show that Drake was at substantial risk of serious physical harm or illness. (In re Alexis E., supra, 171 Cal.App.4th at p. 453; In re Destiny S., supra, 210 Cal.App.4th at p. *6.)
The record shows that Drake was well cared for. DCFS reported that there was plenty of food in the home and the utilities were working. DCFS described the family’s strengths to include that Drake was healthy, that there was family support and that father was employed. Although DCFS initially reported that Drake was three months behind in his immunizations, it later reported that Drake saw his doctor and obtained the proper immunizations. There was no evidence or even allegations of abuse in the home. DCFS also reported that father had been employed for many years and appears capable of providing for the child Drake’s basic needs. There was no evidence showing that Drake was exposed to marijuana, drug paraphernalia or even secondhand marijuana smoke. DCFS failed to show that there was any link between father’s usage of medical marijuana and any risk of serious physical harm or illness to Drake as there was no evidence that father had failed or was unable to provide Drake with adequate supervision or protection. The record on appeal lacks any evidence of a specific, defined risk of harm to Drake resulting from father’s usage of medical marijuana. (In re David M., supra, 134 Cal.App.4th at p. 830.) Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative. (Ibid.) Prior case law is clear with respect to medical marijuana usage in the context of dependency. Although even legal  use of marijuana can be abuse if it presents a risk of harm to minors‖ (In re Alexis E., supra, 171 Cal.App.4th at p. 452.), a jurisdictional finding under section 300, subdivision (b),
based merely on such usage alone without any evidence that such usage has caused serious physical harm or illness or places a child at substantial risk of incurring serious physical harm or illness is unwarranted and will be reversed.
The record was entirely void of evidence supporting a finding of jurisdiction under section 300, subdivision (b), based on father’s conduct and we will reverse the judgment in part as a result.”