In re Alexis E., B207752

In re Alexis E., et al (B207752)

California Court of Appeals - Second Appellate District - 1/23/09 (Certified 2/23/09)

Facts and Procedural History

Alexis E. and her siblings (identified as Samantha E. and Elijah E.), who had been living with their father and his girlfriend, were detained by the Social Services Agency following a report of emotional abuse by the father. Following detention, the children were placed with their mother, who lived with their maternal grandmother.

When the social worker visited the children, they variously reported a high degree of concern about the father's use of marijuana. The father reported that he uses medicinal marijuana for pain control following knee surgery, and also to help him copy with "anxiety". He claimed that he does not use marijuana in the presence of his children, and that he suffers no ill effects from its use.

At an initial adjudication hearing, the social worker expressed concern about the father's drug use and made referrals to a drug treatment program and for random drug testing. The father also subsequently failed to comply with the monitored visitations set up by the Department, and made a number of unfounded referrals against the children's mother. The social worker subsequently expressed concern that "[f]ather’s use of marijuana means that the children would be in a dangerous environment if they were to be placed in his care for unmonitored visits or to live in his home, and that this danger would be intensified because he has anger management issues", and recommended that he be ordered to complete a drug rehabilitation program and on-demand drug testing.

At the adjudication/disposition hearing in May, 2008, the court sustained allegations under Welf. & Inst. Code section 300 alleging, inter alia, that Father's use of marijuana renders him incapable of providing regular care and supervision of the children. The court declared the children dependents, made a home of the parent order for Mother and the children, ordered Family Maintenance for Mother and the children, and ordered that family reunification services (including drug rehabilitation and random drug testing for father, as well as other services not relevant here) and set a review hearing for August, 2008.

Father appealed the disposition orders, alleging that there is insufficient evidence he abused durgs in the past as well as insufficient evidence that his current use of marijuana presents a risk to the children. He also alleged that alleged that the court's orders undermine the protections afforded by California's sanction of medical marijuana in that it forces him to choose between giving up medicinal use of the drug (which may be the most effective treatment choice) or to give up reunification with his children.

Issue(s)

1. Was the evidence on the record sufficient to sustain an allegation under Section 300 showing that Father's current use of marijuana presents a danger to the children?
2. Does the court's order to require drug rehabilitation and testing as a condition of reunification conflict with the protections afforded by California's sanction of medical marijuana?
   

Rule(s)

Section 300, subdivision (b), of the Welfare and Institutions code states in relevant part that a minor comes within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk he or she will suffer, serious physical harm or illness because of the failure or inability of his or her parent to adequately supervise or protect the child, or the inability of the parent to provide regular care for the child due to the parent’s substance abuse.

Analysis

In evaluating the claims of insufficiency of evidence, the court first noted that the other unrelated allegations made against Father (including domestic violence) would, by themselves, be sufficient to sustain a dependency proceeding. Notwithstanding that, however, the court opted to address the issues he raised on appeal in any case.

The court noted that Father's first claim, that the record was insufficient to show that he had a past history of drug abuse and that his current use of marijuana presents a danger to his children, is unavailing. The court explained that Father was self-medicating with marijuana prior to his obtaining a prescription, that he uses marijuana when his children are in the home, and that there is a non-speculative risk to the children from second-hand smoke. The court further stated that section 300.2 of the Welfare and Institutions code mandates that "“[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."

The court commented that it was unfathomable that the Legislature should be concerned about the negative effects of marijuana use on children in all cases except when it was being smoked within the medical marijuana law, and that "even legal use of marijuana can be abuse if it presents a risk of harm to minors." The court noted that "use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court", but that the negative effects of marijuana when smoked in the presence of the children, combined with the Father's shifts in mood and behavior when he consumes the drug, satisfy the "and more".

The court next turned its attention to the Father's claim that requiring him to engage in drug counseling and testing presents him with a choice between his legal right to use medical
marijuana and his ability to reunite with his children. The court likewise found this claim unpersuasive. First of all, the court noted that "“[t]he paramount purpose underlying dependency proceedings is the protection of the child. The parents do not represent a competing interest in this respect." The court further explained that juvenile court has broad discretion to fashion a dispositional order that will best serve the interests of the children, and that dispositional orders may not be reversed absent a clear abuse of discretion.

In this case, the court found that the juvenile court did not abuse its discretion in ordering drug rehabilitation and testing to mitigate the risks to the children from their father's drug use. Nor did the court hold that this is an "either/or" issue. The court said that it is not necessarily the case that the Father must forgo entirely the use of medical marijuana entirely to address the juvenile court's concerns; drug counseling might help father to set limits on his consumption of medical marijuana that would address the court's concerns and level of use could be monitored by drug testing.

Conclusion(s)

1. YES, the evidence on the record was sufficient to sustain an allegation under Section 300 showing that Father's current use of marijuana presents a danger to the children.
2. NO, the court's order to require drug rehabilitation and testing as a condition of reunification does not conflict with the protections afforded by California's sanction of medical marijuana because the court need not require that the Father forgo the use of medical marijuana entirely to address its concerns, and room exists to craft a plan whereby Father's use of the drug is monitored and subject to constraints for the welfare of the children.
   

Disposition

The judgment of the lower court was affirmed.

The full text of the opinion can be downloaded here: PDF, Word.