Hot Docs: Marijuana use alone isn’t enough to get child protection involved

December 13, 2012

Marijuana gavelAs a parent, one of the worst possible situations imaginable to be in is facing state intervention over questions of the safety of your child or children (trust me: from the cases I’ve dealt with, it is one of the last things you want to happen).

Unfortunately, sometimes it seems as though there was nothing you could have reasonably done differently to prevent an investigation by the local child protection agency.

What’s worse is when a court orders your child to be subject to the court’s jurisdiction based on insufficient or nonexistent evidence.

That’s exactly what happened to Paul M., father of Drake M.

Drake was born in August of 2010, and on May 10, 2011, when he was nine months old, the Los Angeles County Department of Children and Family Services (DCFS) received a referral.

The referral alleged that Paul, along with Drake’s mother, Lisa H., used marijuana, that Lisa “had a history of extensive drug abuse and of prior DCFS involvement with another child with whom she failed to reunify, and that the reporting party was concerned for the safety and welfare of Drake.”

DCFS brought complaints against both parents.

Against Paul, it alleged that his use of marijuana “endangers the child’s physical health, safety, and well being.”

Against Lisa, DCFS alleged that she “has a history of illicit drug use including amphetamine and marijuana which renders the mother periodically incapable of providing regular care and supervision of the child,” as well as “a history of mental and emotional problems including a diagnosis of Bi-polar [sic] disorder which periodically render [her] unable to provide regular care for [Drake].”

After the investigation and disposition hearing, the trial court found against both parents on all allegations made by DCFS, and, while allowing Drake to continue living at home, ordered the mother to submit to weekly drug testing, comply with all counseling programs, and take all prescribed medication.

Paul was ordered to submit to random drug testing and to attend parenting courses and drug counseling sessions.

There seems to be sufficient evidence presented at trial to justify the ruling against Lisa, Drake’s mother.

However, there certainly wasn’t any such evidence to justify an adverse ruling against Paul.

Hot Doc: In re Drake M.

Source: Thomson Reuters News & Insight – National Litigation

In fact, there was quite a bit more evidence to the contrary: that his marijuana use didn’t interfere with his ability to provide “regular care and supervision of the child” in the least.

Although Paul indeed used marijuana, he used it medicinally to treat his arthritis, and he had a valid prescription for it.

In addition, the evidence showed that Paul went out of his way to ensure that his marijuana use had no impact on Drake: Paul explicitly stated that “there was no smoking in [his] house,” that he kept the marijuana locked in a toolbox in the detached garage, and that a minimum of four hours passes from when he smokes marijuana at work to when he drives to pick up Drake at daycare and bring him home.

Further, Paul testified that he never feels the effects of marijuana when he picks up Drake from daycare, and, hypothetically, if he ever did, he “would leave [Drake] there longer or make arrangements.”

The DCFS investigations effectively corroborated Paul’s testimony.

But how did the DCFS attorney respond?  By arguing that Paul was under the influence of marijuana while caring for Drake.

The attorney by his own admission didn’t have any actual evidence to this point (“It’s true I don’t have evidence that he smokes in the same room as the minor”).

Further, the attorney argued that “I think we quite well know that marijuana doesn’t wear off in four hours,” and that “the notion he’s not under the influence is ridiculous.”

Of course, since no evidence was offered to support this contention, we’re apparently just to accept the argument alone as fact (but that’s not really how building a sufficient factual basis on circumstantial evidence really works).

What’s probably more incredible than the attorney’s argument is that the judge actually bought it.

Luckily, we have appeals courts to clean up after the trial courts’ mistakes, and that’s exactly what happened in Paul’s case:

The appeals court reversed, finding that “without more, the mere usage of drugs by a parent is not a sufficient basis” for DCFS action,” and that there was “no evidence showing that [Paul] failed or was unable to adequately supervise or protect Drake.”

Although the appeals court was able to rectify the lower court’s error, the case still serves as an apt example of why a parent does not want state intervention in their children’s lives: with very little (or no) evidence, a child could be placed under the state’s jurisdiction and require his or her parents to comply with specific conditions to prevent harsher action from being taken.

True, there is certainly an important role for child protection actions.

However, because it lacks the same constitutional safeguards as criminal law, the possibility of abuse or error is far greater – and, since the lives of children are implicated – the consequences are often graver.