In Re DRAKE M.: Marijuana Use Is Not Necessarily Abuse


Pot: Lawful Use is Not Necessarily Abuse

by Mark D. Gershenson, Esq.

Marijuana has been in the news quite a bit lately. Voters in the states of Colorado and Washington voted last month to legalize the recreational use of the weed. Cities all over California–including Palm Springs and Rancho Mirage–are trying to close medical marijuana dispensaries. U.S. Attorneys are busting clinics in Oakland and elsewhere.

President Obama has been, to put it delicately, inconsistent in his stated views about pot. As a candidate for the U.S. Senate in 2004, Mr. Obama told a group of students at Northwestern University that "we need to rethink and decriminalize our marijuana laws." During the first few years of the Obama administration, Attorney General Eric Holder, presumably acting with the president's blessing, cracked down on medical marijuana dispensaries more aggressively than former president George W. Bush. Yet, earlier this month, Mr. Obama said publicly that going after newly legal recreational users in Colorado and Washington is not a good use of the federal government's scarce resources. (We can only speculate as to whether Mr. Obama believes the federal government's resources are truly scarce given his overall enthusiam for government spending and a national debt that is rapidly approaching $17 trillion.)

No, this blog article is not a political rant. The foregoing is offered for context. Marijuana usage has long been a controversial issue in family law custody disputes. Frequently one parent alleges that the other smokes pot and therefore should not get custody (and sometimes not even visitation). Courts frequently impose "thou shall not be under the influence of alcohol or illegal drugs while the children are with you or for 12 hours before they are with you" orders.

Some family law bench officers construe evidence of marijuana use as indicating that a parent is unfit. Other family law bench officers take a more nuanced approach, and focus on the nature and extent of a parent's use of pot (or, to borrow a phrase from the pornography wars, the "time, place, and manner" of marijuana consumption).

The Second District Court of Appeal's recent decision in a juvenile dependency case that began life in Los Angeles County blesses the latter approach. (In re Drake M., (December 5, 2012) 211 Cal.App.4th 754.

In Drake M., the father appealed a judgment declaring his son a dependent of the court based on the father's use of medical marijuana and ordering the father to submit to random drug testing and participate in parenting classes and drug counseling.

The child in question had come to the attention of the Los Angeles Department of Children and Family Services ("DCFS") when he was nine months old. A referral alleged that both the father and the mother used marijuana, and that the mother had an extensive history of drug use and prior DCFS involvement with another trial.

When interviewed, the mother acknowledged that the father used marijuana for his arthritis, and that she and the father smoked marijuana but never in young Drake's presence. The social worker found Drake to be in good condition, and that there was ample food and working utilities in the family's house.

Father admitted to using marijuana three times a week for arthritis and pain. He claimed that he and Drake's mother did not use the drug at the same time, that Drake was always being watched by his adult daughter or another adult when father got high, and that neither he nor Drake's mother used pot in front of Drake. Father agreed to submit to drug testing and tested positive for marijuana and negative for other drugs.

DCFS filed a dependency petition against both parents. As to father, DCFS alleged he

"is a current user of legal marijuana which on occasion's [sic] renders the father incapable of providing regular care and supervision of the child. The father's drug use endangers the child's physical health, safety and well being, creates a detrimental home environment and places the child at risk of physical harm, [sic] and damage."

As to the mother, the allegations were more numerous and severe.

At the detention hearing, the court detained Drake from his mother and placed him with his father.

One might think that would have been the end of the government's intrusion in the lives of this family; if so, one would be wrong. At the adjudication and disposition hearing five months later, father testified that he used marijuana for relief from arthritis pain that resulted from his spending three hours a day on his knees in his work as a cement mason. He said he never smoked in his house, only in the attached garage. He kept the marijuana in a locked tool box in the garage. At least four hours would pass between his smoking marijuana and his seeing Drake after work.

DCFS argued that father was still under the influence of marijuana when he was around Drake; and was driving under the influence of the drug because the effects of marijuana take more than four hours to wear off. Such argument was not supported by any evidence, however:

"DCFS provided no evidence, through expert testimony or otherwise, showing that four hours after smoking marijuana father was still under the influence of marijuana and was unable to operate a vehicle or care for a child."

The court found that DCFS's allegations against the father were true, and left Drake in father's care under DCFS's supervision but with restrictions and requirements:

"Father was ordered to avoid being under the influence of marijuana while providing care for Drake. He was also ordered to submit to random drug testing and to attend parenting courses and drug counseling sessions."

Father appealed, claiming that there was insufficient evidence to support the finding that his conduct caused Drake to suffer, or to be at a substantial risk of suffering, serious physical harm or illness. The Court of Appeal reversed. Because DCFS conceded that Drake had not suffered any actual harm, the issue was whether there was sufficient evidence to find that there was a substantial risk that he would will suffer serious physical harm or illness.

In what arguably comprises the most significant part of the opinion, the court drew a distinction between substance abuse and substance use–a distinction that all too rarely been acknowledged in the "Just Say No"-spawned drug hysteria that has captured the imagination of large segments of the American public for decades.

"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. (§ 300, subd. (b).) We have previously stated that without more, the mere usage of drugs by a parent is not a sufficient basis on which dependency jurisdiction can be found. (See e.g., In re Alexis E., supra, 171 Cal.App.4th at p. 453 [' . . . [W]e have no quarrel with Father's assertion that his use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court, not any more than his use of the medications prescribed for him by his psychiatrist brings the children within the jurisdiction of the court'];In re Destiny S. (2012) 210 Cal.App.4th 999, ['It is undisputed that a parent's use of marijuana[, hard drugs, or alcohol] 'without more,' does not bring a minor within the jurisdiction of the dependency court'.)"

Finding no workable definition for "substance abuse" in the legislative history court fashioned one, relying an earlier dependency case involving a parent's use of marijuana, Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322:

"[A] finding of substance abuse for purposes of section 300, subdivision (b), must be based on evidence sufficient to (1) show that the parent or guardian at issue had been diagnosed as having a current substance abuse problem by a medical professional; or (2) establish that the parent or guardian at issue has a current substance abuse problem as defined in the DSM-IV-TR."

The DSM's definition of "substance abuse," quoted in the Drake opinion, hinges on whether and to what extent the ingestion of a substance interferes with a person meeting his or her responsibilities; causes a person criminal, social or interpersonal problems; or involves physically dangerous situations such as driving a car or operating machinery.

The Court of Appeal held that DCFS had failed to adduce evidence that father's use of marijuana meant that he was a substance abuser, or that he remained impaired when he picked up Drake.

The court noted that father was gainfully employed, had no criminal record, and did not suffer from interpersonal problems.

While dependency jurisdiction would have been proper even without evidence that father was a substance abuser had it been shown that he failed or was unable to supervise or protect Drake, the evidence was to the contrary. Drake was well-cared for. There was food in the house. The utilities worked. Drake received proper medical care and immunizations. The court held that a finding of dependency jurisdiction based on

"[marijuana] 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."

In short, there was no evidence that father's marijuana use had any adverse impact on Drake or that it posed a substantial risk of harm to the boy.

Accordingly, the court reversed the jurisdictional finding at to the father, as well as the orders requiring him to submit to random drug testing or participate in parental counseling classes.

Drake loudly and clearly proclaims that a parent's mere use of marijuana does not in and of itself mean that his or her child should be taken away from him or that he or she should be subject to social workers interfering in the parent-child relationship. When use becomes abuse, however, the situation changes. Unfortunately, there is no single bright-line test to distinguish between the two. What the Drake court seems to be saying is that unless and until marijuana use results in irresponsible or dangerous behavior, especially behavior that poses a substantial threat of harm to the child, or prevents a parent from providing proper care for his or her child, such use is not a basis for dependency jurisdiction.

Whether Proposition 215, known as California's Compassionate Use Act of 1996, has, in practice, served primarily as a front for the distribution of marijuana for recreational, rather than medical uses, while perhaps a fitting subject for political debate, is irrelevant to a parent's right to use the drug pursuant to that law without fear that such usage will land him or her in juvenile court on a dependency petition. Let us hope that social workers throughout the state will read and head Drake for that principle. Ditto for family law bench officers presented with a marijuana use allegation in a custody dispute.

Would the result in Drake been different had the father been using marijuana with the same frequency (about four times a week), but for recreational rather than medicinal purposes? Perhaps, is the court had gotten hung up on the "illegal" nature (in California) of recreational marijuana use; but from a principled perspective, no. The focus should be not on whether a practice is legal or illegal, but rather whether it affects a parent's ability to provide proper care and supervision for his or her child, or exposes the child to a substantial risk of harm or danger. After all, driving five miles over the speed limit on the freeway is illegal, yet no one suggests that such conduct should result in a dependency petition or affect a custody decision. Driving 50 miles over the speed limit, well, that's a different story.

What about if a parent uses an illegal drug other than marijuana? Again, the focus should be on use-versus-abuse, and whether and to what extent the drug affects the parenting or exposes the child to a substantial risk of harm. Clearly that is the standard we apply to the use of legal drugs such as alcohol. Even the most gung-ho, inexperienced social worker would not file a dependency petition based on a parent's single glass of wine every night with dinner. If the parent routinely has two cocktails before dinner and then polishes off a bottle of wine with dinner, especially in the presence of the child or while that parent is the sole caretaker of the child, even the most aggressive defense counsel should think twice before contending that the parent is not an alcoholic.

As the Renaissance German-Swiss physician and scientist articulated, "The dose makes the poison." Perhaps Justice Croskey had that in mind when he wrote the opinion in Drake.

Palm Springs Divorce and Family Law Attorney Mark D. Gershenson

400 South Farrell Dr., Ste. B-203, Palm Springs, CA 92262-7965voice: 760/322-0555 fax: 760/322-3395