December 13, 2102: In what is believed to be the first ruling in the nation to distinguish between "use" and "abuse" of marijuana in juvenile dependency law, the California Court of Appeals has rejected the mandatory parental supervision of a father who uses medical marijuana. The story, reported today by Nicole Flatow in Think Progress, relates that the appellate court ruled unanimously, concluding that the lower court "had produced no evidence that the father, 'Paul M.,' who is employed full time as a concrete mason and supports his family, was a poor parent, nor that he was abusing marijuana:
[The Los Angeles County Department of Children and Family Services] failed to show that father was unable to provide regular care for [Drake M., his 2-year-old his son] due to father‘s substance abuse. Both DCFS and the trial court apparently confused the meanings of the terms ―substance use and ―substance abuse. The statute is clear, however, jurisdiction based on “the inability of the parent or guardian to provide regular care for the child due to the parent‘s . . . substance abuse,” must necessarily include a finding that the parent at issue is a substance abuser. […]
Although “even legal use of marijuana can be abuse if it presents a risk of harm to minors,” a jurisdictional finding … 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....
Reporting in the Huffington Post, Anna Almendrala writes:
...Paul M. was first placed under county DCFS supervision after an October 2011 hearing in which he testified that he possessed a prescription for medical marijuana and used the drug multiple times a week for knee pain and arthritis. Paul M. also stated that he didn't use marijuana in front of his son, instead retreating to a detached garage where the drug is kept locked on a shelf in a tool box. When Paul M. was in the garage, either the baby's mother, adult half-sister or grandmother would watch the child.
At issue for DCFS was the fact that Paul M. picked up his son by car from daycare four hours after using marijuana. The lower court agreed with the agency and placed Paul M. under DCFS supervision...The ruling affects only Paul M.'s parental rights. Each parent was treated separately by the appeals court, which rejected DCFS's claim that the parents should be treated as a single unit. After the initial interview with DCFS, Lisa H. was also told to undergo drug tests and to attend counseling and parenting classes. She also was ordered to move out of the home due to past illicit use of amphetamines and marijuana, her history of mental and emotional problems, and the removal of her child with another man from her custody in 2002. That child was adopted by another family...
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