Is Smoking Medical Marijuana Parental Neglect ?
In In re Drake M. (2012) 211 Cal.App.4th 754, a father admittedly used medical marijuana several times per week and had positive drug tests throughout the proceedings. (Id. at pp. 758-759.) However, his child was healthy, the father was employed and there was family support. (Id. at p. 759.)
The court found the father's use of marijuana did not support jurisdictional findings under section 300, subdivision (b), because there was no nexus between the drug use and his ability to care for the child.
The court drew a distinction between substance "use" and "abuse" (id. at p. 764), and held "mere usage of drugs by a parent is not a sufficient basis on which dependency jurisdiction can be found." (Ibid.)
Rather, a finding of substance abuse for purposes of a showing of parental neglect under section 300, subdivision (b), requires evidence sufficient to (1) show that the parent has been diagnosed as having a current substance abuse problem by a medical professional, or (2) establish that the parent has a current substance abuse problem as defined in the DSM-IV-TR. (Id. at p. 766.)
In Drake M., supra, 211 Cal.App.4th 754, the court found the father was not a substance abuser because there was no evidence he failed to fulfill his work obligations, suffered from substance-related legal problems, drove his car while under the influence of drugs or continued using drugs in the face of social or interpersonal problems caused by drug use. (Id. at pp. 767-768.)
There was also no evidence the father lacked the ability to supervise or protect his child adequately. On the contrary, the evidence demonstrated the child was healthy, receiving good care and had not been exposed to marijuana or second-hand marijuana smoke. (Id. at pp. 768-769.)