Tuesday, February 24, 2009
C.A.: Father’s Medical Marijuana Use Poses Threat to Children
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal has rejected a father’s challenge to a juvenile court order he said forced him to choose between the right to use medical marijuana and his children.
Holding in an opinion ordered published yesterday that the children’s physical and emotional health and safety was the paramount interest, and threatened by the father’s manner of marijuana use, Div. Three affirmed an order requiring the man to engage in drug counseling and testing.
The children, identified as Alexis E., Samantha E. and Elijah E., were detained by the Los Angeles County Department of Children and Family Services in December 2007 after being placed with their mother when their father was arrested for domestic violence.
The father, Patrick E., had separated from the children’s mother five years earlier, and the children’s detention stemmed from reports that he had been involved in physical altercations with two different girlfriends, both in the children’s presence, resulting in a domestic violence conviction from the first altercation, and pending charges on the second.
The alleged victim declined to press charges in the second altercation, but the mother told social workers she had been a victim of the father’s domestic abuse.
The children indicated a positive view of living with their mother, but expressed negative opinions about living with their father, saying the father was “never around,” and describing him as being “dangerous,” including yelling, scaring them, and inflicting corporal punishment.
They also described his altercations with his girlfriends as being mutually assaultive, and expressed dislike for the smell of his marijuana smoking, and its effect on him.
The father had a prescription for medical marijuana, although he admitted having used marijuana before obtaining the prescription, and he testified that he smoked one marijuana cigarette each morning and one at night for pain management resulting from knee surgery.
He also said he used the drug to help with anxiety stemming from major depression and recurrent and severe panic disorder, and denied smoking around the children, but Los Angeles Superior Court Judge Marilyn Mackel found that the court had jurisdiction based on the father’s history of domestic violence and substance abuse, and the risk that his continued marijuana use posed.
On appeal, the father challenged the court’s jurisdictional finding as to his marijuana use and the threat it posed, and objected that Mackel’s order requiring drug counseling and testing violated his right to use medical marijuana, but Justice H. Walter Croskey rejected both theories.
“[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. However, we have…the ‘more’ that supports the court’s finding….”
Noting that the father’s admitted pre-prescription use of marijuana supported the juvenile court’s finding that the father had a history of substance abuse, Croskey said that the risk of harm to the minors was demonstrated by the presence of secondhand smoke to which they testified.
The justice reasoned the conclusion was supported by the absence of any authorization in the state’s Health and Safety Code for medical marijuana users to use the drug within 1,000 feet of schools, or recreation or youth centers, giving rise to a “reasonable inference…that use of marijuana near others can have a negative effect on them.”
Croskey similarly opined that the children’s testimony as to the father’s negative demeanor after using marijuana—given his mental condition—demonstrated a risk of harm, and suggested that the father’s marijuana use might be the cause of his anxiety problems.
Justices Patti S. Kitching and Richard D. Aldrich joined Croskey in his opinion.
The case is In re Alexis E., B207752.
Copyright 2009, Metropolitan News Company