A recent California dependency court case,
In Re Drake M., 211 Cal. App. 4
th 754 (2012), has offered insight as to when the use of medical marijuana
by a parent can be considered harmful to a child. In short, under
Welfare and Institutions Code §300(b) a minor child may be taken from the custodial parent if there is
proof that a parent's use of marijuana renders them unable to care
for their child
or the parent fails to adequately supervise or protect the child while under
There is often a perception that a parent's use of legal medical marijuana
may cause a court to stigmatize that parent. In
Drake, Department of Children and Family Services (DCFS) became involved with
a family because of a report that the minor children in the home may be
in danger. The Court in
Drake outlined how medical marijuana usage alone may not present a risk of harm
or render a parent unable to care for their child. The court emphasized
how the father never smoked in front of his child and was never alone
with the minor child while he was under the influence of marijuana. Furthermore,
the court differentiated substance
use (legal or illegal) with substance
abuse is qualified when it is diagnosed as such by a medical professional or
alternatively if the person meets the standards defined in the DSM IV-TR.
The father had no legal issues, had a stable job and the minor child appeared
well taken care of while in his care. Because the father in this case
did not fit either description of a substance abuser, the court held substance
use without more is not enough to have the minor child taken by DCFS.
This was distinguished from earlier cases involving the use of medical
marijuana. Prior case law found the use of medical marijuana might present
a risk of harm to a child in instances such as exposing them to second
hand smoke or driving with children while under the influence.
In Re Alexis E. 171 Cal. App. 4
th 438 (2009). In
Drake however, the fact that the father had regular positive drug tests of marijuana,
admitted to smoking marijuana 4-5 times per week and picked up his children
after smoking marijuana, the Court rejected these arguments as proof that
there was a risk of harm to the children. Without actual evidence that
the father's marijuana use was harmful to the child or that he was
unable to properly care for his minor child because he smoked medical
marijuana, the assumption cannot be made that the child is at risk.
In essence, the court held that under WIC 300(b) the father was not a
substance abuser and had not failed to supervise or protect his child.