Medical Marijuana and Child Custody: Legal Memorandum

Questions Presented

1. Michigan law provides for the removal from the home and placement into protective custody of any minor child whose welfare, in the judgment of state authorities and/or state courts, is in jeopardy. The probate court and Child Protective Services (CPS) cited the Smith’s cultivation and use of medical cannabis as ipso facto proof that their child was endangered. Did the judge in the probate court and/or Child Protective Services (CPS) overstep their authority by removing the Smith’s two-year-old daughter from their home and placing her into protective custody?

2. The temporary removal of a child from his/her parents into protective custody requires a much lower standard of proof than does a permanent removal; in the former, only a suspicion that the child is in danger is deemed necessary, while in the latter, the state has a much heavier burden of proof: that an ongoing, recurring, significant danger to the child’s well-being exists. Regardless of the outcome of any temporary custody hearing, will the State of Michigan file for custody of the child, and if so, will the Smiths retain or lose custody of their daughter?

Brief Answers

1. Yes, both CPS and the court overstepped their authority. There was little reason to consider that the Smith’s child was in any danger from the cultivation and use of marijuana inside the Smith’s home. CPS cited the supposed danger of drug-related break-ins, but this argument was weak in that by that criterion, keeping any valuable items in the home that would be attractive to thieves, such as a rare coin collection, would constitute child endangerment. Any suggestion that the marijuana use itself by the father created a sufficiently unhealthy environment to warrant the child’s removal due to, for example, secondhand smoke would need to be coupled with a quantitative assessment of the harm from such, but no such justification was given. The court should not have issued the order for the child’s removal since no endangerment as defined by the relevant statute existed and there was no evidence for such having occurred in the past, nor was there any reason to expect that the child would be endangered in the future.

2. No, the State of Michigan will very likely not pursue an action to permanently remove the child from her parents’ custody, nor would the State be likely to prevail if it did pursue such an action. As stated above, no endangerment to the child as defined by statute exists. The Smiths, with Mr. Smith in possession of a valid medical marijuana card and Mrs. Smith a licensed caregiver who could legally grow the schedule one drug, would thereby have an affirmative defense to any charges of criminal wrongdoing regarding their marijuana cultivation and use. The State, in trying to remove the Smith’s daughter from their custody, would be pursuing a largely fruitless, and more importantly, legally unjustified action.

Statement of Facts

On or about October 1, 2013, Michigan Child Protective Services (CPS), acting under an order issued by a probate court, physically removed the two-year-old daughter of the Smiths, a couple residing in the court’s jurisdiction in Michigan. The reason giving by CPS for assuming custody of the child was that the Smiths were actively engaging in cultivation and consumption (smoking) of marijuana within their home and that these actions constituted a clear and present danger to the child’s welfare. The probate court agreed with this evaluation and issued an order for the child’s removal from her parents’ custody.

Michigan law allows for the cultivation, possession, and consumption of marijuana by individuals for medical purposes. The particular statute is the Michigan Medical Marijuana Act of 2008, excerpted below. The Smiths had complied with all the provisions of the Act and their cultivation, possession, and use of marijuana was completely legal under those provisions. Specifically, Mr. Smith was in possession of a valid medical marijuana card and Mrs. Smith was a licensed caregiver for Mr. Smith and was therefore allowed to cultivate the drug for her husband’s use. Thus, the legality of the Smiths’ marijuana possession and use was not in question.

The decision of CPS to act in this case was apparently because of a perception that the presence of the cultivated drug in the Smiths’ home constituted a danger to the child in and of itself, because of the drug’s (and the plants that produced it) attractiveness to thieves. The concern expressed was that there was a significant chance of a drug-crime-related break-in at the Smith’s home because of the presence of significant amounts of marijuana, and the child was therefore significantly endangered thereby. CPS also expressed concern that the presence of marijuana smoke in the home may have endangered the child. In making this finding, neither CPS nor the court attempted to ascertain the level and frequency of marijuana use in the Smiths’ home.

The child is now in the temporary custody of a court-appointed and CPS-approved caregiver, awaiting final disposition of the case. CPS is drafting a petition to the court for the awarding of permanent custody of the child to state child welfare agencies; the Smiths have filed to regain custody. This memorandum will outline the legal precedents, both persuasive and binding, that are relevant in this impending action.

Applicable Statutes

Michigan Child Welfare Law

4.1.2. Emergency court orders are generally issued ex parte, that is, without a formal hearing or the presence of all interested parties. Typically the protective services worker confers with the judge or referee in his or her office and presents the facts and circumstances and the written petition.

4.2.2 Only if the threatened harm amounts to a "substantial risk" is the placement of the child away from the parents permitted. Without making compromises on child safety, protection of the child in the family by measures less drastic than out of home placement is encouraged.

Federal law requires that the court find that reasonable efforts have been made to prevent or eliminate the risk to the child necessitating placement. The reasonable efforts finding is required to receiving federal funds for foster placement.

If placement is ordered, the court must make a statement of findings, in writing or on the record, explicitly including the finding that it is contrary to the welfare of the child to remain at home and the reasons supporting that finding.

Michigan Medical Marijuana Law (2008)

333.26424 Sec. 4 (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege…for the medical use of marijuana in accordance with this act….

(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege…for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marijuana in accordance with this act.

Probate Code of 1939

712A. 19b. (3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.

(Many other contingencies are stated, but this is the most relevant one.)

Special Proceedings and Actions: Michigan Court Rules, 1985

3.207 (A) Scope of Relief. The court may issue ex parte and temporary orders with regard to any matter within its jurisdiction and may issue protective orders against domestic violence as provided in subchapter 3.700.

(B) Ex Parte Orders. (1) Pending the entry of a temporary order, the court may enter an ex parte order if the court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.

Child Custody Act of 1970

722.23 “Best interests of the child” defined.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

Discussion

The central issue, both in terms of whether CPS and the probate court acted properly and of whether the Smiths will ultimately be allowed to regain and retain custody of their child, is whether the cultivation and smoking of marijuana inside the Smiths’ home constituted an ipso facto danger to the child, or if it caused ongoing, substantial harm.

It should be noted that the Smiths’ marijuana use and cultivation were the only basis for CPS’s actions. The agency did not allege any other misconduct or endangerment by the Smiths, nor did the probate court make any finding exclusive of that related to the Smiths’ marijuana use. The Smiths do not dispute the allegation that marijuana is cultivated and smoked in their home, but they do vigorously deny that such constitutes any sort of danger to their child.

In answering the question of whether CPS and the court exceeded their authority, it should be noted that the Michigan Child Welfare Law allows broad scope for temporary action on the part of CPS, the courts, and other governmental authorities. The concept is that in many cases, imminent danger to a child may exist and immediate removal is warranted without the necessity of a formal proceeding. This obviously balances the trauma that may be inflicted on the child from such removal against the need to protect the child from the possibility of harm.

In terms of whether permanent custody of the child should be awarded to the state or to the Smiths, the paradigm is reversed. The child, now in state custody, is presumably out of any immediate danger. A careful assessment of the child’s former home environment can now be undertaken. The Child Custody Act does mention that as a default setting, the parents should be allowed to retain custody of their child, as continuity of the home environment is an intrinsic good for a child. Only in the clearly defined case of ongoing, substantial, and irremediable endangerment will the courts permanently remove the child from his/her parents’ custody.

The specific components of endangerment of the Smiths’ child as related to their marijuana use are hazards due to secondhand smoke inhalation and the increased possibility of drug-related violent crime in the household, specifically break-ins/robberies. Only the former has been studied and can be measured, as has been done in a number of cases examining the effects of secondhand non-tobacco smoke. It should be noted, however, that the fact that one or both parents smoke tobacco products in the home is not generally considered to be child endangerment, even when such use is excessive and even though the harmful effects of secondhand smoke are well documented. Nonetheless, in many child custody cases, whether or not one parent smokes in the household has been a factor in the awarding of custody.

The increasing awareness of the harm caused by secondhand tobacco smoke has caused the courts to give increasingly greater weight to cigarette smoking as a factor in child custody decisions. For example, in Pierce v. Pierce, 2006 Ohio 4953, 2006 Ohio App. LEXIS 4888, Court of Appeals of Ohio, Seventh District, Columbiana County, the trial court had awarded custody of the parties’ minor child to the father. The court had found that both parents were good parents but awarded custody to the father because he and his new wife do not smoke, while the mother and her fiancé smoke heavily. The Ohio Court of Appeals, Seventh District, affirmed the judgment of the trial court, ruling that it was “reasonable and, therefore, not an abuse of discretion.” The Court of Appeals noted that the Ohio Supreme Court has “catalogued the risks secondhand smoke poses, especially to children.” The Court of Appeals concluded that, given “these health risks, courts have concluded whether a parent smokes is a proper factor to consider when making child custody determinations.” A major determinant in such cases is that if the child suffers from a respiratory condition, then the courts will quite often award custody to the nonsmoking parent. In In Re: C.F., 2005 Ohio 6559, 2005 Ohio App. LEXIS 5911 (Ct. of App. Of Ohio, 12th App. Dist., Madison Cty. 2005), the Madison County Court of Common Pleas, Juvenile Division, granted permanent custody of a child, C.F., to the Madison County Department of Job and Family Services, Children Services Department. The child’s father, S.F., appealed. The Court of Appeals affirmed the juvenile court’s judgment, noting that the child had undergone surgery to improve his medical condition and “still has a narrow airway that requires monitoring as he is still susceptible to breathing problems and may require future surgery.” The case plan in this case “indicated that the parents should not smoke around C.F. because of physicians’ concerns about the effects of smoke on C.F.’s respiratory conditions.” Nonetheless, S.F. was observed, despite repeated admonishments, on occasion smoking just before visiting C.F. This does not mean, however, that a child has to have a diagnosed respiratory condition before he/she can be considered to be endangered by his custodial parent’s smoking. In Silvius v. Silvius, 2005 Va. App. LEXIS 292, 20.4 TPLR 2.735, (Court of Appeals of Virginia 2005). In March 2000, the circuit court decreed joint custody with physical custody of the couple’s two children to the father. In May 2002, the mother moved for a change of custody and visitation. The circuit court fixed specific times and dates for visitation and continued earlier restrictions on the mother’s use of alcohol and tobacco during visitation. The order prohibited her from smoking in the presence of the children or smoking in her residence during visitation. The mother then asserted that the trial court lacked jurisdiction to restrict her use of alcohol and tobacco during visitation with her two children. The Court of Appeals of Virginia affirmed the circuit court’s findings, noting that the mother “continuously violated an earlier order forbidding her to smoke in front of the children. On one occasion the mother taped a plastic sheet between the front and back seats of her car so she could smoke while driving with the children. The father testified that her smoking endangered the health and welfare of the children.” While in other similar cases, the courts have awarded custody to parents who smoke or allowed them to retain custody, it is clear that at the very least, a cogent argument could be made that smoking in the home endangers the welfare of a child. The next question to consider, then, is whether secondhand marijuana smoke constitutes a danger of the same magnitude as that from secondhand tobacco smoke.

It is clear that secondhand marijuana smoke has at least some harmful component to it. While the myth that one can “get high” by merely inhaling secondhand marijuana smoke has largely been discredited, it has been generally accepted that many of the same harmful components of secondhand tobacco smoke—tar, carbon monoxide, etc.—are also present in secondhand marijuana smoke. However, in Colorado, which allows medical marijuana use, in Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010), the Court of Appeals denied the wife’s custody appeal that had been based on the husband’s use of medical marijuana. In other words, the mere presence of marijuana smoke was not perceived to be a grave enough threat for the court to remove the child from the custody of his marijuana-smoking parent.

A more overarching consideration is that while CPS services in many states that have legalized marijuana either for medical use or simply for recreational possession have sought to remove children from the custody of their marijuana-smoking parents, the fact remains that if secondhand smoke was truly a consideration, then CPS agencies should be vigorously pursuing pack-a-day cigarette smokers and removing their children from those dangerous environments, not singling out marijuana smokers. Certainly, the harm from secondhand smoke varies by degree. As a marijuana cigarette costs roughly fifteen times as much as a tobacco cigarette, it is unlikely that a home where marijuana is smoked would contain as much secondhand smoke as one where tobacco is smoked. Also, many users of medical marijuana only use it as a palliative, and then only on occasion, when needed. Marijuana is not nearly as addictive as tobacco; this, in addition to its much higher cost, means that chronic, habitual use is rare.

It seems clear, nonetheless, that in many cases and many states, CPS feels that there is sufficient cause to allege child endangerment on the basis of secondhand marijuana smoke alone. It is therefore incumbent on the Smiths and on anyone else in a similar situation to be prepared to show that their use of marijuana is moderate and that smoke-free areas of the home are delineated. There appears to be no clear consensus on the issue, though. In Marriage of Wieldraayer 147 Wash. App. 1048 (Wash. App. 1988), the court held that in the case of visitation rights, the trial court had the discretion to require supervision of visitation when the effects of the father’s marijuana use on the children were amply illustrated by evidence. In Alexis E. 90 Cal. Rptr 3d 44, 56 (Cal Ct. App. 2009), however, the court ruled that in order for a case to be brought within the jurisdiction of a child dependency court, the record must show more than the simple fact that medical marijuana is being used, and that the effects of secondhand smoke (as a possible cause of harm to the child) need to be demonstrated rather than simply assumed.

While the debate rages on regarding possible endangerment to children from secondhand smoke, it should be noted that there is no clear consensus. It should also be noted, however, that CPS services probably have at least a pretext to remove a child temporarily from parental custody on the basis that marijuana is smoked in the home, due to secondhand smoke concerns. That marijuana use, while gaining widespread acceptance among the general population, is still considered more transgressive than tobacco use should be taken into account. This means that uneven enforcement due to the local political and social environment as well as the agendas of CPS entities and even individual employees will continue to be the rule rather than the exception. Medical marijuana users in child custody battles with either spouses or government agencies should, therefore, be prepared to show that their marijuana use is moderate and confined to certain areas of the home (ideally, isolated from those areas the child frequents). The Smiths’ ultimate success in retaining custody may well depend on how successfully they convey this to the courts.

The discussion on whether or not the presence of marijuana plants and harvested marijuana in the home constitutes a danger to the home, and thus the child, from drug-related crime such as breaking and entering, theft, etc. is clearer and more easily addressed. Since the legality of the Smiths’ marijuana cultivation and use is not in question, child custody decisions based on drugs being in the home and/or being used by a parent of parents are not germane, since the vast majority of such decisions have been based on the drugs’ inherent “badness,” i.e., their illegality and harmful effects on users. It is more appropriate, then, to examine if there are any custody cases where removal of a child was asked for on the basis of the child’s home containing valuable property to the extent that the home was an excessively attractive target for thieves and related violence. This researcher was unable to find such a court filing, let alone a decision. By basis of comparison and the doctrine of equal protection under the law, it would be unreasonable for CPS or another state agency to argue that the presence of material wealth in the home constituted a danger to the child or children within. While marijuana plants and harvested marijuana may be valuable, so are many things found in various homes, such as rare coin collections, art objects, computers and software, jewelry, etc. Yet, no state agency has clamored for the removal of a child based on the fact that his parents have a Picasso mounted above their fireplace and thus, the home is an irresistible target for thieves. Further deflating the drug crime argument is the fact that the amount of marijuana cultivated and harvested by the Smiths at any one time has a value of only a couple of thousand dollars at most. This amount would not attract criminals even if it were somehow widely known that there was marijuana in the Smiths’ home. Therefore, the concern expressed by CPS in this regard was specious at best and the Smiths’ counsel should be prepared to refute it.

Compared to the propriety of the CPS’s and the probate court’s actions, the issue of a permanent custody ruling is somewhat problematic. One thing that the Smiths have in their favor that they did not have in the CPS’s ex parte petition to the court and their daughter’s subsequent removal from their custody is that the haste deemed necessary to remove the child from imminent danger is no longer warranted. Therefore, the Smiths will have ample opportunity to retain counsel and put together a cogent case for the restoral of custody to them. The more deliberate process of a custody hearing may allow them to represent themselves as responsible parents who are giving their child a healthy living environment. They may also succeed on appeal, should they lose the initial round. For instance, in re Drake M., B236769, the California Court of Appeals reversed the lower court’s ruling that had originally placed a child under the jurisdiction of the court due to her father’s medical marijuana use, noting that the court had not had the authority to do so based on the father’s legal use of the substance alone. It would seem that the initial stigma of marijuana use (though perfectly legal) can sometimes prompt CPS agencies to act precipitately, exaggerating the danger posed to the child. While the CPS in the Smith’s case may have overstepped the bounds of their authority and the probate court should not have granted its petition, the fact remains that the Smith’s best chance for relief lies in the ultimate custody hearing, not in challenging the CPS or the probate court; that decision will be made in a more objective environment.

In the realm of jurisdiction, in Ter Beek v. City of Wyoming in 2008, the Appeals Court of Michigan found that the city of Wyoming did not have the authority to contravene the Michigan Medical Marijuana Act by imposing special zoning restrictions on a property holder simply because he used medical marijuana. The court noted the specific provisions in the law that expressly forbid such discriminatory treatment. This indicates that the state is serious about its power to enforce the allowing of medical marijuana even when local ordinances or selective enforcement hinder or outright prohibit it. Whether this also means that the State of Michigan is willing to take on the United States in a jurisdictional battle over medical marijuana legalization is much less clear.

Binding Authority

Due to the newness of the Michigan Medical Marijuana Act (MMMA), there is a paucity of Michigan case law dealing with its applicability to child custody cases. Most challenges to the law, including several in progress as this is written, have involved the definitions and parameters of what constitutes a medical marijuana dispensary. All such actions that this researcher could find were state prosecutions of defendants who were charged with having exceeded those parameters. The existing decisions—all very recent—suggest a liberal interpretation of the MMMA by the courts. For example, in People vs. Johnson, Michigan Court of Appeals Docket #308104, September 10, 2013, the Michigan Court of Appeals upheld the defendant’s motion that their medical marijuana dispensary was protected by the provisions of the MMMA and that they should, therefore, be granted relief from the lower court’s ruling that they were running a for-profit organization in violation of the law.

In discussing the applicability of the MMMA to child custody cases in Michigan, therefore, it is appropriate to examine persuasive rather than binding authority. This can come from similar child custody cases in other states where medical marijuana use has been approved by the voters; several such cases have already been cited in this memorandum. It is clear that many such persuasive examples of case law can be cited in support of cases such as the Smiths’; it is equally clear, however, that an equal number of examples can be cited to support the denial of custody to the couple. The fact of the matter is that in Michigan and elsewhere, the societal and legal perceptions of marijuana use are greatly in flux. One might expect, therefore, that Michigan courts will be reluctant to issue verdicts that create a binding precedent in cases such as the one discussed here.

Persuasive Authority: Opinion of Michigan’s Attorney General

In light of the lack of binding authority in the application and validity of the MMMA in decisions regarding child custody, it is useful to examine the expressed opinions of those in authority. One such opinion is that of Bill Schuette, Attorney General for the State of Michigan, issued in an informational document on May 10, 2013. The rationale for the document’s creation and presentation was that several questions had arisen regarding the MMMA and child custody cases. These questions were (paraphrased): 1) Whether an individual in a child custody proceeding may invoke the provisions of the MMMA; 2) What exactly constitutes “an unreasonable danger to the child that can be clearly articulated and substantiated”; 3) Whether an individual must be issued and possess a valid registry identification card in order to raise an affirmative defense in a child-protective proceeding; and 4) Whether a trial court has the authority, in a child-protective proceeding, to independently determine whether a person meets the definition of “qualifying patient” or has a “debilitating condition” as per the MMMA.

Schuette’s opinion re the first question is that said individual may invoke the MMMA’s provisions, but only in those specific situations where the law does apply. He did note in referencing Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972) and In re Brock, 442 Mich at 109 that the companionship, care, custody and management of their children in an inherent right of parents and that the “broad language” of the MMMA’s provisions would seem to implicitly safeguard that right. As the removal of their child from their custody would constitute a severe abridgment of that right, Schuette’s interpretation suggests that child protective agencies, as well as the courts, should be reluctant to deprive parents of custody of their child and that only evident and substantial danger to the child should be deemed sufficient cause for a child removal action.

Schuette goes on to say that said protection is not absolute. If a clearly unreasonable danger to the child exists, then the parent cannot invoke the MMMA in defense. He does note that this caveat applies to any other lawful activity by the parent that though legal, creates an unreasonable risk of harm to the child.

Schuette next deals with perhaps the most ambiguous and subject to interpretation sections of the law, namely, what constitutes “unreasonable danger” and how that can be “articulated and substantiated.” He notes that neither the MMMA itself nor any other applicable Michigan statute defines these phrases in a sufficiently helpful context. He makes the assumption that what constitutes an unreasonable danger should be evaluated on a case-by-case basis and that, in fact, this is why the term was left undefined. For the Smiths, this suggests the proper strategy. They need to argue not that their marijuana use poses no risk to their child but rather, that said use does not pose an unreasonable risk.

Schuette does draw the important distinction between a generalized danger posed by parental marijuana use and the danger present in specific situations, such as when a child in the home has respiratory problems or when the caregiver/parent’s use of marijuana is so heavy as to hamper his/her ability to properly care for the child. He cites In re Alexis E., 90 Cal Rptr 3d 44, 54 (2009) in noting that in this decision, the court viewed secondhand smoke to be a specific and substantial danger. This is obviously a matter of both degree and of interpretation. In the case of the Smiths, their daughter does not have any known respiratory condition, nor does Mr. Smith’s marijuana use appear to be so excessive as to generate a large quantity of secondhand smoke. Again, an attempt to evaluate and possibly quantify the use and consequent danger posed by Mr. Smith’s marijuana smoking and secondhand smoke will be the task of the family court.

Schuette further notes that “articulated and substantiated,” using the dictionary definitions of the terms, means that an inquiry into child endangerment from marijuana use in the home should be “fact-specific” and that any assertion that such danger exists must be “supported by evidence.” This could go two ways in the Smith’s case. There is no doubt, nor do the Smiths deny, that marijuana is smoked in their home. That this in itself constitutes a danger to the child will be hard for CPS to prove, however. If the court decides that any secondhand marijuana smoke is bad, then the Smiths could lose. However, they do have the argument available that the Child Welfare Act only allows removal from the parents’ custody if an unreasonable danger is present. As noted above, their task will be to show that while their daughter is exposed to secondhand marijuana smoke, that exposure does not constitute an unreasonable danger to the child. They will have very little, if any, Michigan precedent to fall back on and will have to rely on presenting the merits of their case.

Schuette’s next answer deals with the necessity of obtaining a valid registry card in order to raise an affirmative defense. He notes that the affirmative defense mentioned in Section 8 of the MMMA applies only to criminal proceedings and not to child custody cases, which are civil proceedings. He does state that possession of a valid registry card is, in fact, necessary to invoke such a defense. This is only relevant to the Smiths’ case in that the father possesses a valid registry card and thus, if any criminal prosecution is raised against him in the context of a child custody proceeding, he will have the abovementioned affirmative defense available as a remedy.

Schuette’s answer to the final question is that the courts do have the authority to independently compel a person to release medical records or undergo an independent medical examination. He notes in citing In re Johnson, 142 Mich App 764, 766; 371 NW2d 446 (1985) that the courts may compel the release and/or provisions of medical records of a parent, guardian, or legal custodian. This is done, however, only for the purpose of evaluating whether a person is a qualifying patient under the MMMA; the court may not issue an independent finding. By contrast, Schuette notes, the court may consider evidence that the patient’s use of marijuana is not for the purpose of alleviating the stated condition. In other words, it is not enough for the person to prove that he/she has a debilitating medical condition as defined; it is also necessary that he/she proves that his/her marijuana use is for the specific purpose of alleviating that condition. He further states that such an assertion must be supported by evidence from a licensed physician.

In the Smiths’ case, the father is a diagnosed epileptic and suffers from a number of other illnesses as well. He has a valid marijuana registry dispensary card. His conditions have been diagnosed by his primary physician and his medical marijuana is legally prescribed by that physician and provided by his wife, a licensed caregiver, and a grower of medical marijuana for that purpose. There would seem to be no significant danger of Mr. Smith’s medical use of marijuana being deemed invalid as it applies to the MMMA.

Schuette’s stated opinions suggest that the courts can and should refrain from making overarching, blanket judgments about the dangers posed to children by medical marijuana cultivation and use in the home. Rather, a case-by-case approach should be used. The Smiths should, therefore, concentrate on supplying the court with specifics to show that the negative effects of Mr. Smith’s marijuana use on the couple’s child are minimal.

Considerations of Federal Law

While many states have decriminalized marijuana possession and use and some have outright legalized it, and several others have legalized its medical use, the drug remains illegal under U.S. law. Medical marijuana users, cultivators, and dispensers are in violation of federal drug laws and in many cases, are committing felonies. While President Obama has publicly stated that his administration will not prosecute personal possession and use of small or moderate quantities of marijuana, that condition could change with, for example, the election of a conservative President. The federal government has historically considered drugs and narcotics to be under its purview and has been reluctant to cede regulation of such to the states. However, there is a precedent in the matter of state liquor laws and licensing.

A felony conviction would not necessarily be detrimental to a parent’s custody evaluation by a family court, especially if the offense was not a crime in the state in which the action was held. Nonetheless, those who obtain and use medical marijuana legally from the point of view of state jurisdiction need to be aware that they are committing a federal crime and that this could potentially be used against them in a civil proceeding. Not all government entities, such as CPS, in Michigan or elsewhere, are in harmonious and total agreement with the MMMA and similar medical marijuana laws. A state agency wishing to bolster its case for removing a child from parental custody could, for instance, ask the parent point-blank if he/she cares that by using medical marijuana, he/she is violating federal law. Any assertion by the parent that his/her use is sanctioned by state law could be attacked on the basis that it is inherently reckless to deliberately disobey any law, particularly a federal one.

The above is somewhat hypothetical in that the current political climate seems to indicate that except in the case of large-scale producers and distributors, individuals who cultivate and use marijuana will not be and in the last few years, have not been subjected to federal prosecution for doing so. Yet, there are other federal statutes that are not enforced by the states, such as laws prohibiting counterfeiting, or those forbidding the making of wagers across state lines. The issues of state vs. federal jurisdiction are murky at times and one should not relax completely simply because one uses medical marijuana in a state that has deemed it legal by passing a statute to that effect. The federal government still can and very well may assert that the states have no authority to legislate the legality of a controlled substance.

While the Smiths do not have to worry at present about federal prosecution, therefore, they are still somewhat at risk of violating federal drug laws. What may ultimately protect them is the sheer number of persons violating those same laws, in Michigan and other states where marijuana has been legalized to some extent. It would behoove them to be aware of societal and political changes regarding the perception of the appropriateness of medical marijuana use. The chance of their violating federal law affecting their child custody case, while it does exist, is probably minimal.

Conclusions

1. Did CPS and/or the probate court overstep their authority in acting to remove the Smiths’ child from their custody?

Clearly, the CPS did have the legal authority to perform this removal, under the aegis of the probate court. The question remains, though, of whether that authority was reasonably exercised. Just as a traffic policeman has the authority to stop a motorist but must have reasonable cause to suspect that said motorist has committed a traffic violation, so must CPS or any governmental authority have reasonable cause to suspect that a child’s welfare is in danger before petitioning and/or acting to remove that child from his/her parents’ custody. In this case, the germane question is whether the fact that the Smiths were known medical marijuana cultivators and users was in itself sufficient reason for CPS to have acted.

Schuette’s opinions and what little case law exists in other states that have legalized medical marijuana suggests that a fairly strong burden lies on the state agency to prove that child endangerment exists and that in the absence of aggravating factors, such as a child’s respiratory condition or the detrimental drug-caused behavior of a parent, that medical marijuana use in the home is not ipso facto a dangerous condition for the child. In its petition before the probate court, CPS only asserted that medical marijuana was being cultivated and used in the home; they stated no specific dangers to the child arising therefrom. Their other stated concern, that the presence of marijuana in the home made it a target for crime, was weak and specious. The court should have given it no weight.

The agency’s other stated concern, that of excessive smoke in the house (secondhand smoke), was valid on its face but again, lacked specifics. Per Schuette, the primary consideration should not be that secondary smoke exists in the home but rather, its severity, duration, and location within the home: each case must be evaluated individually. It appears that CPS and the probate court acted on the “shoot first and ask questions later” approach, which is to say that the agency and the court saw an imminent threat to the child and acted to remove the child for her own safety. It is doubtful, in examining the facts of the case and the relevant persuasive authority, whether such an imminent danger existed. Certainly, it was incumbent on CPS to evaluate the level, frequency, duration, and location of the Smiths’ marijuana use before acting. For instance, if Mr. Smith only smoked marijuana twice a day, with a duration of five minutes each time, and either stepped outside or into his own bedroom to do so, it is difficult to imagine how his daughter could have been substantially harmed thereby.

The probate court was within its authority to grant the CPS’s petition but as the CPS did, overstepped that authority. While the Michigan Child Welfare Law allows for ex parte actions in the interest of a child’s welfare, that should not give the court(s) license to act hastily, precipitately, or unilaterally. While this researcher could not find any statistics relating to the frequency of Michigan probate courts granting CPS or other agencies’ petitions for endangered child removal and transfer to state custody since the medical marijuana law took effect, it seems obvious that said courts should not give carte blanche to agencies merely on suspicion that endangerment exists. It bears repeating that removal from one’s parents for any length of time, particularly in the case of a young child, is highly traumatic for the child. Moreover, such an action violates the parents’ rights: as Schuette noted, parents have an inherent right to the care and custody of their children. Therefore, depriving parents of those rights, even temporarily, must be done only for clear and sufficient cause. The Smiths certainly can and should argue before the court that such clear and sufficient cause did not exist. The court should not have granted CPS’s petition and in doing so, overstepped its authority.

If the Smiths wish to regain custody of their child in the interim period between now and an ultimate binding custody proceeding, they can and should illustrate to the court that Mr. Smith’s marijuana use will be confined only to areas in or outside their home that are not frequented by their child. They do not, as noted above, have the burden of proving that no secondhand smoke exists in their home, only that any danger posed by it to their child is minimal and not “unreasonable.” Numerous case law exists validating the concept that certain behaviors by the parent that are possibly detrimental are not in and of themselves grounds for termination of custody; those behaviors must also inflict active and substantial harm on the child. For example, in re Application for Custody, Supreme Court App, Div, 1st Dept. New York, Oct. 30, 2001, the court only removed the respondent-appellant’s parental custody rights on the grounds of neglect, not because he was an alcoholic. The fact that the appellant had a substance abuse problem was not in and of itself grounds for depriving him of custody. Therefore, based on this criterion, Mr. Smith’s marijuana use should not be considered in and of itself detrimental to his child.

It is interesting to note that the legality of Mr. Smith’s marijuana use (at least from a state standpoint) shouldn’t enter into the discussion of whether his child is endangered by it. Courts can and have removed children from the custody of parents due to their perfectly legal but child-endangering actions. Therefore, it is moot whether or not Mr. Smith’s marijuana use is legal. The converse of this argument is that an illegal act does not ipso facto endanger a child, apart from the risk of the parent’s arrest and prosecution, so again, whether Mr. Smith’s marijuana use is, in fact, legal or illegal shouldn’t be an issue.

2. Will the Smiths ultimately retain or lose custody of their child?

First of all, it is not a given that CPS will take this case any further than it has already gone. The probate court may award the Smiths temporary custody, whether as a result of their petition or on its own initiative. The case may, in fact, end there. The Smiths may be able to convince CPS to drop the case, or they may convince the probate court to nullify it. Particularly if the Smiths are not egregious in their cultivation and use of medical marijuana, they may be able to make the informally presented argument that they are not endangering their child.

The Smiths will benefit from several factors. State-provided foster care of a child is costly. There are only so many placement sites and only so many caregivers. If the Smith’s daughter is actually in no danger, then placing her in permanent foster care is a waste of limited resources, and a truly endangered child may have to stay with abusive parents as a result. Therefore, the family court should and will be very circumspect in evaluating what and how much true danger the Smith’s daughter may be in from staying with her parents.

Additionally, the family court should consider the harm done to the child and her parents by her removal to foster care. While the CPS’s actions may have been hair-trigger, the court’s actions should be deliberate and carefully considered. This is and should be the case when the court—or any governmental body—seeks to do a certain amount of harm in order to forestall or prevent greater harm. For this reason alone, the court should and will be reluctant to remove the Smith’s child from their custody.

The combined factors, that the proceedings against the Smiths may be canceled and that they have a high probability of success in regaining custody should a formal family court hearing on the matter take place, lead to the conclusion that the Smiths will probably regain and retain custody of their child. This evaluation, of course, refers only to present conditions and the facts of the case as they are presently known. Any one of a number of events or revelations could tip the balance in either direction.

That said, there are several steps the Smiths can take to improve their chances. They should carefully log and document all the marijuana use in their home by Mr. Smith, even going so far as to record each individual incident of use and its duration and location. They should keep careful track of all marijuana grown in their house, including harvested and dried weight of the plants. They should also carefully record and document the destruction of any unused plants. They should also take pains to ensure that Mr. Smith’s marijuana use occurs as far away as possible from their daughter. Any steps they take to mitigate secondhand smoke dangers could blunt any argument by CPS or others that Mr. Smith’s marijuana use poses a secondhand smoke threat to their child. Furthermore, they should take the utmost precautions that their daughter has no access to the marijuana growing area or to where the finished product is stored, and rigorous document those precautions. In general, the Smiths should be diligent in preparing to show the court that they recognize the potential danger to their daughter from their use and consumption of medical marijuana.

A further consideration that the Smiths should take into account is whether the medical marijuana is, in fact, needed to alleviate Mr. Smith’s medical conditions. It is quite possible that conventional analgesics and other medications could prove just as efficacious in providing relief for Mr. Smith; only in the case of certain cancers and terminal conditions has marijuana been demonstrated to be the only effective treatment. Simply switching medication protocols from marijuana to other drugs would make the state’s petition moot and would certainly enhance the Smith’s chances of retaining custody of their child, to whatever degree that may be.