January 01, 2013

Father’s Legal Use of Medical Marijuana Did Not Justify Dependency Jurisdiction

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Drake M., 2012 WL 6048996 (Cal. Ct. App.).

Where child had become involved primarily due to safety concerns regarding the mother’s behavior, but father used marijuana medically, jurisdiction was inappropriate over him without a showing of how his use put the child at substantial risk.

Child became involved with the court on a petition alleging child was dependent because the parents used marijuana. The agency had been involved with the mother previously due to drug abuse and mental illness and her rights to another child were terminated. The father of Drake M. was not involved in that prior case. 

The father reported using marijuana several times a week for arthritis and had a prescription. Initially, the agency entered into a safety plan where the grandmother would ensure the child was supervised whenever the mother or father were under the influence of marijuana. However, she had to leave the state due to another family emergency. 

The agency then filed a petition. The petition alleged the father’s legal drug use and mother’s illegal drug use as well as mental health issues put the child in danger. 

The trial court sustained the allegations, but ordered the mother to leave the home and be provided reunification services. The court ordered father to participate in drug tests and parenting classes but allowed the child to remain in his care. 

The father appealed the dependency order to the California Court of Appeals. 

The Court of Appeals noted that to sustain dependency jurisdiction the trial court was required to prove the child was at risk of serious harm. The Court noted that no harm was ever alleged to have come to the child or that any high-risk situation was implicated. The child had not reportedly been exposed to second-hand smoke and the home was adequately furnished and provisioned. Rather, the petition alleged simply that the father was a substance abuser and thus could not care for the child. 

Based on the petition and evidence, the trial court erred in finding the child dependent regarding the father. There was no evidence that the father was a substance abuser. While he admitted to using drugs, no testimony indicated he met the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM) for abuse. The record showed he did not appear to have a “maladaptive pattern of substance use leading to…significant impairment or distress.” 

The father had a long and consistent employment history. In fact, it was his employment as a mason that led to him being on his knees for hours a day which prompted him to use marijuana to remedy the pain. The father had not suffered legal problems because of his drug use. Last, the agency’s contention that the father’s use of marijuana four hours before driving indicated that he drove impaired was not supported by the evidence. No expert testimony, police reports, or standards for the legal limits for marijuana use and driving were presented.

While the court would still have authority to order the father to complete tasks or services based on the adjudication of the mother, the drug testing and parenting class requirements were not appropriate in that regard. Neither of these services was designed to help the child reunify with the mother. 

Based on the above, the Court of Appeals reversed the order.