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Medical Marijuana and Family Law

Posted By Castellanos & Associates, APLC || 4-Mar-2015

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 the influence.

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. 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.

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