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Appellate courts in California have repeatedly reversed findings of neglect based on parental marijuana use where there was no evidence establishing a connection between such use and an actual or a substantial risk of harm to the children (see e.g., In re David M., 134 Cal App 4th 822, 827-833, 36 Cal Rptr 3d 411, 414 - 418 (Cal App 4th Dist 2005) and Jennifer A. v. Superior Court (117 Cal App 4th 1322, 1333-1347, 12 Cal Rptr 3d 572 (Cal App 4th Dist 2004); In re Aliyah G., 2011 WL 3190697, 8 (Cal App 2d Dist)).

In David M., the appellate court held that the Family Court erred by entering a finding of neglect since there was no evidence tying the mother's marijuana use to actual harm or a substantial risk of serious harm to the children.

Although the mother tested positive for marijuana at the birth of her youngest child, that child was healthy and showed no signs of withdrawal from any controlled substances. The older child was loved, healthy and well-cared for. The parents had obtained regular, appropriate medical care for the older child from the time of his birth. The home was clean and contained all necessary provisions.

The worker never spoke to anyone who had seen the mother use drugs during her pregnancy or had seen her in possession of drugs or drug paraphernalia. There was no evidence of a specific risk of harm to either child from the mother's substance abuse.

The Court wrote that even if subsequent reports from the baby's foster parent that he experienced tremors and muscle stiffness were true, there was no evidence that these symptoms were caused by the mother's use of marijuana.

Applying similar reasoning in Jennifer A. v. Superior Court, the appellate court held that the Family Court erred in finding that the mother's one positive test for marijuana and one positive test for alcohol created a substantial risk of detriment to the children's physical or emotional well-being.

The worker never saw the mother under the influence of drugs or alcohol and the worker testified that the mother did not have a drug problem that affected her parenting skills. There was no evidence linking the mother's marijuana or alcohol use to her parenting skills or judgment.

There was no evidence that she had ever used any drugs other than alcohol or marijuana or that she ever drank alcohol or smoked marijuana in the presence of the children. There was no history of mental illness or incarceration.

There was no evidence of clinical substance abuse, no testimony from a medical professional and no report of a clinical evaluation establishing a pattern of substance abuse leading to clinically significant impairment or distress);

In re Aliyah G., 2011 WL 3190697, 8 (Cal App 2d Dist) (the evidence was insufficient to support a finding that the father's use of cocaine, marijuana and alcohol caused the children to suffer or put them at substantial risk of suffering, serious harm where none of father's drug tests were positive for cocaine and although he admitted to drinking alcohol, he stated that his drinking was not excessive and he tested positive for alcohol only once. None of the children reported that the father's drinking or marijuana use adversely affected his ability to care for them and two of the children said that the father did not drink or use marijuana around them);

compare, In re Alexis E., 171 Cal App 4th 438, 452 453, 90 Cal Rptr 3d 44 (Cal App 2d Dist 2009) (the mere use of marijuana by a parent, without more, will not support a finding of risk, however, here the father's marijuana use supported a finding because he used around his children and it had a negative effect on his demeanor towards them);

In re Jeremiah L., 2011 WL 3964653, 7 (Cal App 2d Dist) (the children were at substantial risk of serious harm due to the father's domestic violence and marijuana use);

In re Elijah F., 2011 WL 3652740, 4 (Cal App 2d Dist) (in spite of the baby's healthy condition at birth, the mother posed a risk of harm to him and the findings were supported by substantial evidence where the mother repeatedly used marijuana during her pregnancy, she failed to take her medication for schizophrenia, she physically abused her older child and had a positive toxicology for marijuana the day the baby was born);

In re Nicholas B., 2003 WL 122651 (Cal App 1st Dist) (the evidence supported a finding that the three children were at substantial risk of suffering serious harm where the mother used marijuana and methamphetamine during her pregnancy with her infant son, received minimal prenatal care, had a long history of drug abuse, the toddler was dirty, had severe diaper rash, and had not received immunizations since she was two months old, the mother was unable to keep a clean and orderly household and she and the father were in an ongoing violent relationship and he acknowledged that he frequently used marijuana and was regularly under its influence when the children were in his care)).