Victory For Medical Marijuana

January 16, 2013

The battle for a California man fighting for his child has ended in victory for the man and I'd say in victory for the medical marijuana world as well.  This case proved that using medical marijuana does not mean that a parent is neglectful, but it also points out the fact that even if marijuana was being used on a recreational basis a child should not be removed from their home unless there is diagnosed substance abouse that is causing the child to be in imminent danger or not provided for.

A California Appellate Court reversed a trial court's order that the father undergo drug testing and parenting courses because of his medical marijuana use and awarded the man custody of his child.

In Drake A. case# B236769, Division Three of the Second Appellate District ruled on 12/5/12 that, "Although father uses medical marijuana pursuant to a physician's recommendation, there is nothing in the record to indicate that he has a substance abuse problem."

The arguments that Drake's father was too impaired to drive four hours after smoking marijuana, was throw out as well because "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."

There have been several decisions that the court cited that the use of a drug alone is not sufficient cause for removing a child, absent a clinical diagnosis of substance abuse. In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 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. In Drake, the court wrote, "We find Jennifer A. v. Superior Court persuasive."

 Although "even legal use of marijuana can be abuse if it presents a risk of harm to minors", a finding that a parent places their child at substantial risk of serious physical harm or illness "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 court ruled.

Way to go California Appellate Court for recognizing the facts in this case and allowing this family to be reunited!

 

 

http://www.courts.ca.gov/opinions/documents/B236769.PDF