December 7 – A California Appellate Court has reversed a trial court decision declaring a child to be a dependent of the court, as well as an order that the father undergo drug testing and parenting courses because of his medical marijuana use.
In re Drake A. case# B236769, Division Three of the Second Appellate District ruled on 12/5/12 that, “Although 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.”
In its ruling, the court cited its own decisions and others that said the use of a drug alone is not sufficient cause for removing a child, absent a clinical diagnosis of substance abuse. In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 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. In Drake, the court wrote, “We find Jennifer A. v. Superior Court persuasive.”
The court also dismissed arguments that Drake’s father was too impaired to drive four hours after smoking marijuana, ruling “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.”
Drake’s father said in court he uses medical marijuana for arthritis about four times a week, and does not use it in front of his child or care for him while under the influence. He has been employed for many years and is capable of supporting his child, the court found.
Although “even legal use of marijuana can be abuse if it presents a risk of harm to minors,” a finding that a parent places their child at substantial risk of serious physical harm or illness “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 court ruled.
“Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse,'” the court wrote. “We have previously stated that without more, the mere usage of drugs by a parent is not a sufficient basis on which dependency jurisdiction can be found (See e.g. In re Alexis E., supra, 171 CalApp4th at p. 453)” In that case, the court compared the father’s medical marijuana use with prescription drug use, and said that use of marijuana before using it medically was not sufficient proof of substance abuse.
The attorney in the case was Lauren K. Johnson of Irvine.