Dec 082012
 December 8, 2012

california appellate court drake medical marijuana paulCalifornia Appellate Court Rules In Favor Of Family Who Wrongfully Had Their Child Taken Away

There aren’t many things that make me sadder than hearing stories about parents having their children taken away. Unfortunately, that was the case with a family in California in May 2011. The family was reported for being marijuana consumers with a child in the residence, which resulted in a visit from the California Department of Children and Family Services (DCFS). During the visit, the child in question’s parents provided information that they were medical cannabis patients. After a battle with DCFS, the child was placed into protective custody.

Fortunately, the case was appealed, and the parents won on appeal. The court ruled that DCFS failed to show that the parents were unable to provide regular care for the child in question due to medical marijuana use. Medical marijuana use alone is not sufficient to take a child away. I truly hope that this ‘de facto’ policy of DCFS is changed, and that no more parents and children have to suffer. Below is the main part of the court’s ruling, which can be found in it’s entirety at this link. There doesn’t seem to be much press about this, so please pass along the information so that DCFS can’t sweep this under the rug!

“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. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1346.) Additionally, there was no evidence presented to establish Mother displayed clinical
substance abuse, that is, [a] maladaptive pattern of substance use leading to clinically significant impairment or distress . . . occurring within a 12-month period.’ (Am. Psychiatric Assn., Diagnostic & Statistical Manual of Mental Disorders (4th ed. 2000) p. 199.) No medical professional diagnosed Mother as having a substance abuse problem, no medical professional testified at the 18-month hearing, and there was no testimony of a clinical evaluation. (Ibid.) The court went on to state, [w]e have no clinical evaluation, no testing to indicate [substance abuse], just the opinion of the mother’s social worker and a therapist.’ [Citation.] (Ibid.) Finding the evidence insufficient, it granted the writ petition. (Id., at p. 1347.)”

“At the time of the hearing, Drake was only 14 months old. DCFS needed only to produce sufficient evidence that father was a substance abuser in order for dependency jurisdiction to be properly found. DCFS failed to do so. First, there was no evidence in the record that father failed to fulfill major role obligations at work. Indeed the opposite was true. DCFS reported that father had been employed for many years and appears capable of providing for the child Drake’s basic needs. Next, there was no evidence in the record that father suffered from recurrent substance-related legal problems. Rather, the record shows that father possessed a valid recommendation from a physician to use marijuana for treatment of his chronic knee pain. There was no evidence in the record that father had a criminal history. Despite DCFS’s allegations, there was no evidence in the record that father was under the influence of marijuana while driving his vehicle. There was no evidence showing that father was still under the influence of marijuana when he picked up Drake from day care and cared for him alone, nor was there evidence showing that a person
remains under the influence of marijuana four hours after smoking it from which it could be inferred that father was still under the influence. As we noted earlier, counsel for DCFS stated, with respect to father’s driving to pick up Drake four hours after smoking marijuana, He would be he would be subject to sanctions should he be driving with the child. . . . He’s legally over any indication that is allowed on any sort of driving limit. I think that the court can easily find that he’s regularly under the influence while caring for his child.

DCFS, however, failed to provide any evidence such as police reports or other documentation, any controlling legal authority, any expert testimony, or any witness testimony to support this conclusion. California’s Vehicle Code does not specify a legal limit for marijuana (as it does for blood alcohol) at which a person is subject to arrest
for driving under the influence (DUI). (See, generally, Veh. Code, § 23152.) Instead, under the influence within the meaning of the Vehicle Code, [means] the . . . drug[] must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his [or her] faculties. [Citations.]‘ (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) Thus, 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. Finally, there was no evidence in the record that father continued to use marijuana in the face of having persistent or recurrent social or interpersonal problems caused or exacerbated by marijuana.”

“Our analysis of the record shows that it contains no evidence that father has a substance abuse problem. Even DCFS’s attorney conceded at oral argument before us that she could not say, based on the evidence, that father was abusing marijuana. As a result, the trial court’s finding that jurisdiction based on this prong of section 300, subdivision (b), was not supported by the evidence.

b. There Was No Evidence Showing That Father Failed or Was Unable To Adequately Supervise or Protect Drake

Despite there being no evidence that father has a substance abuse problem, a finding of jurisdiction based on father’s use of marijuana may have been proper if the evidence showed that, as a result, father failed or was unable to adequately supervise or protect Drake. DCFS, who had the burden of proving jurisdictional facts by a preponderance of the evidence‖ (In re D.C., supra, 195 Cal.App.4th at p. 1014), failed to prove such a link, however. Here, the record shows that father possessed a valid recommendation from a physician to use marijuana for treatment of his chronic knee
pain. His continuing usage and testing positive for cannabinoids on drug screens, without more, is insufficient to show that Drake was at substantial risk of serious physical harm or illness. (In re Alexis E., supra, 171 Cal.App.4th at p. 453; In re Destiny S., supra, 210 Cal.App.4th at p. *6.)

The record shows that Drake was well cared for. DCFS reported that there was plenty of food in the home and the utilities were working. DCFS described the family’s strengths to include that Drake was healthy, that there was family support and that father was employed. Although DCFS initially reported that Drake was three months behind in his immunizations, it later reported that Drake saw his doctor and obtained the proper immunizations. There was no evidence or even allegations of abuse in the home. DCFS also reported that father had been employed for many years and appears capable of providing for the child Drake’s basic needs. There was no evidence showing that Drake was exposed to marijuana, drug paraphernalia or even secondhand marijuana smoke. DCFS failed to show that there was any link between father’s usage of medical marijuana and any risk of serious physical harm or illness to Drake as there was no evidence that father had failed or was unable to provide Drake with adequate supervision or protection. The record on appeal lacks any evidence of a specific, defined risk of harm to Drake resulting from father’s usage of medical marijuana. (In re David M., supra, 134 Cal.App.4th at p. 830.) Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative. (Ibid.) Prior case law is clear with respect to medical marijuana usage in the context of dependency. Although even legal [10] use of marijuana can be abuse if it presents a risk of harm to minors‖ (In re Alexis E., supra, 171 Cal.App.4th at p. 452.), a jurisdictional finding under section 300, subdivision (b),
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 record was entirely void of evidence supporting a finding of jurisdiction under section 300, subdivision (b), based on father’s conduct and we will reverse the judgment in part as a result.”

About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • DarkerMatter

    DCFS are just a bunch of criminals trying to protect their bureaucracy.

    • http://www.facebook.com/SunshineTheGrey Diana Sunshine Wulf

      DHHS HOLDS THE PATON

  • antonette

    DCFS>>>They drop the ball SO often, when it involves children “REALLY” being abused,or sexually molested, I really find this absurd! There ^ is that stupid Reefer Madness Mentality! Thank God, common sense prevailed, but still to put this family and baby through this insanity, was probably SO traumatic for them all! People need to Educate themselves, and GET OVER this JACK ASS WAY OF THINKING! Smarten Up!

  • http://www.facebook.com/mhp.ofspokane Mhp Of-Spokane

    Meanwhile they had to live under the thumb this monstrous bureaucracy for how long?
    They tried this crap with MY family back in the eighties. An offhand remark in favor of the legalization of cannabis led to a two year nightmare of CPS intrusiveness culminating in an attempt to strip us of our parental rights. On the day they scheduled our “hearing” we made it a point to be two thousand miles away, where we remained for the rest of the eighties.

  • http://www.facebook.com/Scott.n.Jody Scott ‘n’ Jody

    REALLY? Man go do some real crime fighting!

  • Mass MMJ Attorney

    When I was a criminal defense attorney in California I did one of these cases. Fortunately my client got his kids back, but after 3 days they were with CPS. Can you imagine how freaked out you would be. In that case the medical grow was behind locked doors. In Mass, I do not think this would happen if your cannabis is an enclosed and locked area.
    At least I hope not.
    http://www.massachusettsmarijuanacompliance.com

  • Kathie Z

    I pray this will prevent some of the harm I have seen to these children in foster care, when they should have been with their loving parents.

  • StarrPhish

    I don’t see drunks or violent offenders getting their children taken away.

  • IAmLove

    These are the people who investigated me and my husband for 6 months because we were “satellite schooling,” legally registered and submitting grades and attendance weekly. In spite of the fact that homeschooling is legal, and we were doing something more protected and structured than homeschooling, there were allegations of “educational neglect” simply because our kids were not in public school, and it took 6 months of these people invading our home, once with cops because we were busy and told them they couldn’t come in and disrupt our day, so they came back with the heavies. When someone reports you to DCHS for something, unlike when they report you to the police, they don’t even have to tell who they are or provide any evidence. So there is no possible consequence for filing a false report. DCHS can even call THEMSELVES and report you anonymously. That’s allowed. And if you resist them in any way, they see it as a challenge and attempt to retaliate by TAKING YOUR CHILDREN and putting them in possibly dangerous foster homes, where people get paid to keep kids. Pedophiles are known to be drawn to foster parenting and any other job that involves children, and studies have proven that children are more often abused in foster homes. But they will do that to your kids if you don’t send them to public school, if you use a plant for medicine. It should be criminal, and these people desperately need more oversight.

  • http://www.facebook.com/char33az Charlotte Teibel

    I dont see parents arrested for takin vicoden or drinkin, which is so much worse!!!!!!! People are to friggin ignorant about medical MJ..It saved my life :)

  • http://www.facebook.com/terry.pepper.18 Terry Pepper

    boy this is typical they take a child away 4 some stupid shit but when a child is realy in need of placement because the parents r realy treating them bad breaking boes & the such or evan murder . the state has no way of proving of these aligations . makes me sick . then when parents r found guilty of abuse they plee guilty to a lesser charge & walk doing probation or community service because they ( the parents ) have other children 2 take care of some work those people do 4 kids .

  • http://www.facebook.com/lauren.johnson.3701779 Lauren Johnson-Norris

    I am the attorney who won the reversal for this parent. I just want to clarify- the child was never removed from his father’s custody but the order that was reversed did require DCFS supervision and a petition sustained against this parent. We are pleased by the outcome and recognize this is a win for parents and medical marijuana users in California. Here is more information about this this case and how to reach me: http://www.orangecountycriminalattorneysblog.com/2012/12/california-appeals-court-rules.html

    • Johnny oneye

      thanks for posting!
      hopefully sets precedence!

      • http://www.facebook.com/lauren.johnson.3701779 Lauren Johnson-Norris

        Yes, this is a precedent setting case that courts and attorneys can rely on in other cases.

  • Johnny oneye

    Times are tough for jobs , DFS hires kids out of college , large turnaround.

    Overzealous social workers not experienced will cause a family more harm.

    Not saying they dont have a tough job. But to break a family up with no justification is criminal , too bad they enjoy immunity and sometimes people call DFS to get revenge
    like a ex , or a jilted other.

    Now the judge set it straight , They will still “error in favor of the child”

    and DFS will exploit this!

    I have been trauamatised by DFS and I wish I could sue them!

    another broken arm of the gov.

  • http://www.facebook.com/Slainofyd Slain Illuzion

    My son was taken from me in Clearlake California for someone doing the same thing. I caught some people up in some bad shit and to avoid getting in trouble they lied and told the cops some bogus stuff. My child was tested for THC and nothing was in his system. I had to fight a court case for a whole year from Virginia and ended up doing 45 days in that fucked up county. Now that this has been ruled i might just sue

  • Sean

    It’s obvious that DCFS engages in legalized kidnapping of children.

  • fed up

    people in power are no different than the bullies back in high school, no wonder people get shot.

  • http://pulse.yahoo.com/_VSACEY2V5DVECXJR4TAJYGU36U mitzi

    there are kids whose parents own marijuana dispensaries. DCFS doesn’t seem to go after them, oh thats right they can afford high priced lawyers

  • http://pulse.yahoo.com/_VSACEY2V5DVECXJR4TAJYGU36U mitzi

    ps i’m very very scared. I have a dog, more like my little girl, she’s so sweet and i lover her very much. could animal control come to my home and take her away because i smoke pot in front of her?

  • http://www.facebook.com/people/Matt-McLaughlin/100000039777325 Matt McLaughlin

    California’s Vehicle Code does not specify a legal limit for marijuana (as it does for blood alcohol) at which a person is subject to arrest
    for driving under the influence (DUI).”

    No, but the local DA will think something up.

  • http://www.facebook.com/bob.w.knight Bob William Knight

    dfc are lowlives

  • John Grace

    Thanks Johnny Green!

  • Ricy Mardona

    Great post. useful information. Keep it up.