Photo via iStock/ Kikovic
In Texas recently, a family was brought to court for using cannabis to treat their 18-year-old daughter Kara Zartler with severe autism. While the issue of parents and children using medical marijuana and facing state Child Protective Services (CPS) is a concern for families nationwide, this particular case was unique because the child was not a minor. The judge ultimately ruled that both her parents could remain her legal guardians and administer cannabis to her; however, the questions raised by the case still aren't null in Texas, nor anywhere else.
"Even if there's some kind of intellectual disability when the child turns 18, they're still an adult with the ability to make their own decisions until the court makes a finding that they're incapacitated," explains Kara's court-appointed attorney Ellen Williamson. "My role isn't to actively contest the application [for guardianship], but to make the applicants prove they're qualified. You're asking the court to take away my client's legal rights; she doesn't have the ability to consent to that."
In Kara's case, despite marijuana's grey area legal status (autism isn’t one of the approved conditions for Texas' medical cannabis program), her cannabis treatment wasn't enough to disqualify guardianship.
"The courts are vested with a ton of discretion, what they're looking for is murky," says Carolyn Witkus, a family law attorney with Griffiths Law PC in Colorado. For Kara, the court accepted her parents' claim that cannabis was a last resort. "I think the line we see a lot of is [whether] there's a legitimate therapeutic need; is there some kind of expert support; is the [cannabis] use consistent with the therapeutic need; are they just using THC and CBD, or just CBD?"
These questions apply both to children and parents whose cannabis use may be called into question by CPS. In places like Colorado, cannabis is regarded similarly to alcohol: For example, in a scenario where a new mother would be drug tested in the delivery room, authorities wouldn't only look out for THC, but also alcohol and other drugs, as well, says Witkus. "I haven't seen anybody actually lose their children on account of using cannabis," she says. There's a strong preference in Colorado for uniting children with their biological parents, Witkus adds.
That said, just because Witkus hasn't see it happen, doesn't mean it doesn't transpire. "It's not an automatic thing that happens just because of cannabis use, but if you had somebody that had a clear substance abuse problem with cannabis (as opposed to a legitimate medical use or occasional recreational use — just like having a drink once in a while) and wasn't willing to get sober, they could see substantial consequences in terms of parenting," she says. "Maybe not losing their kids, but having restricted parenting time, supervised parenting time, or substance use monitoring requirements to get back to seeing their kids."
The threshold issue guiding punitive action by CPS is whether the parents pose an existing "threat to the child," explains Howard Cohn, managing attorney at THC Legal Group in Ohio. "This, of course, can be a rather subjective determination, and the threat associated with parents being persecuted by CPS for cannabis use is largely a function of several mitigating factors, including the legal status of cannabis in the given state (recreational states likely have greater protections against CPS interference than medicinal states), the circumstances under which the parent was found to be using cannabis, and unfortunately, the personal bias of the social worker against the use of cannabis," he says. "Ultimately, it is up to the parents to use cannabis in a time, place, and manner that is responsible and responsive to their responsibilities to their children.”
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Not only is the issue of CPS involvement with regard to parent or child cannabis use ambiguous and subjective, it also changes from state to state. Americans for Safe Access (ASA) grades each state by its cannabis program, with "parental rights" as a 10-point category. (The weightiest category is the 40-point "arrest protection," while the lightest is the three-point "reciprocity," concerning whether there's some kind of legal protection for non-resident medical marijuana patients.)
Texas, for instance, was given an overall F grade, with 0 points for parental rights, while ironically, Colorado, despite its B- grade, also received 0 points for parental rights. California, with its B+ rating received 10 points for parental rights, and New York, with a C+ overall grade, also received no points for parental rights. In the states of Alaska, Arizona, Delaware, Illinois, Iowa, Kansas, Kentucky, Minnesota, Missouri, Montana, and Washington, exposing children to the manufacture, possession, or distribution of any federally illegal drug is considered "child endangerment." In ten states, the manufacture or possession of any controlled substance in the presence of a child is a felony.
"I was following that case in Texas, and from our perspective it's a step in the right direction," says David Mangone, legislative counsel for ASA. "This shows a good ideological shift from a state like Texas to say that what these parents were doing was not harmful to their child, and that they were actually providing the best care they were able to."
Most commonly, CPS gets involved because a friend or family member tips off CPS about a parent's cannabis use, and typically these cases revolve around parents who don't have medical recommendations to qualify their use, explains Mangone. "In most family courts, you usually see something that's known as the "best interest of the child" standard," he says. "Courts look at whether parents can provide adequate shelter and basic necessities, factoring in parental relationships and potential harm to the child."
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The supposed inherent danger from exposing a child to cannabis derives from prohibitionist arguments that it could lead to cognitive decline, psychosis, anxiety, or depression, Mangone says. "It's based more on a perceived danger than an articulated danger."
Nonetheless, parents need to be careful about the image they project to CPS and the public at large. Shira Adler, New York-based author of The ABC's of CBD, has had CPS knock on her door multiple times. "People are quick to report things that are incorrect. The last couple times I was reported it was related to [an allegation of] giving my minors marijuana, which was not the case," says Adler, who has a line of THC-free hemp-based CBD products. Her 15-year-old son takes CBD, and her 17-year-old daughter has since started taking medical marijuana for PTSD only after the family's CPS reports.
On one instance, someone had misread the title of an article ("Call Me the Pot Mom") Adler wrote for the Huffington Post and assumed she was letting her son vape marijuana. On another count, Adler suspects her daughter's therapist made the call. The therapist had referred Adler's daughter to a psychiatrist, who prescribed her a cocktail of pharmaceutical medications; not only did her daughter vocalize not wanting to take them, but the prescription for one of them had been miswritten such that if she had taken the "prescribed" dose, she would have fatally overdosed. Upon this discovery, Adler's daughter decided to end things with this therapist, and within a day, CPS came knocking.
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At the end of the day, CPS deemed Adler a suitable guardian, recognizing that her children were not in fact in danger, nor was she giving them psychoactive marijuana. But even in more liberal states like California, parents aren't immune. One woman who vaporizes cannabis in front of her children, and used it for postpartum depression, was able to also convince CPS that her children were nonetheless safe. CPS didn't seem so concerned that she was using cannabis as they were that she was smoking it in front of her children; her kids however, verified that when Mommy smoked joints, she did so outside and out of sight. Her children fully understood that their mother used cannabis specifically for medical reasons.
"I think moms are going to be instrumental in the marijuana movement, showing people that we can use it not just medicinally, but recreationally and responsibly," says CannaMommy founder Kelley Bruce, a Colorado/California mother who's also faced CPS. "Moms are coming out more empowered saying, 'I choose cannabis over alcohol.' But we need the medical community to come around. Doctors who say you'll be fine if you smoke a joint here and there [when you're pregnant] won't say it on the record and they won't [always] prescribed the medicine. There's a huge breakdown between what's medically accepted and what's legally allowed."