Pubdate: Fri, 07 Dec 2012
Source: San Francisco Chronicle (CA)
Copyright: 2012 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Page: C6

COURT LETS MEDICAL POT USER KEEP CUSTODY OF YOUNG CHILD

Parents who abuse drugs can lose custody of their children. But a
parent who uses marijuana for medical reasons, with a doctor's
approval, isn't necessarily a drug abuser, says a state appeals court.

In a 3-0 ruling Wednesday, the Second District Court of Appeal in Los
Angeles rejected findings by a local child-protective agency that a
man who smoked pot four or five times a week for arthritis pain,
outside the presence of his infant son, was endangering the child.

There is "no evidence that (the) father has a substance abuse
problem," the court said. "The record shows that Drake (the child) was
well cared for. ... There was no evidence showing that Drake was
exposed to marijuana, drug paraphernalia or even secondhand marijuana
smoke."

The father, identified as Paul M., has kept custody of the now
2-year-old child because the mother has suffered from drug abuse and
mental illness, the court said. The ruling reversed a judge's orders
placing Paul M. under the child-protective agency's supervision and
requiring him to take parenting courses and drug counseling and
undergo random drug testing.

The ruling illustrates "a growing recognition (of) the legitimate use
of medical marijuana in this state and other states," Lauren Johnson,
the father's lawyer, said Thursday. "We want kids to be safe, but we
also want people to get their medicine ... as long as children aren't
at risk of harm."

Lawyers for Los Angeles County were unavailable for comment. The
county could appeal to the state Supreme Court.

A county social worker first visited the family in May 2011, when
Drake was 9 months old. Paul M. described his marijuana use and the
measures he took to protect the child, assigning his adult daughter to
watch Drake while the father smoked in the garage.

He testified in court that he waited at least four hours after using
marijuana before leaving his job as a concrete mason to pick up Drake
from day care. He also said he never drove under the influence of marijuana.

The county agency found that Drake was healthy, but said in a court
filing that the father's marijuana use made him "incapable of
providing regular care and supervision of the child." A county lawyer
called "ridiculous" Paul M.'s statement that he was not under the
influence of the drug while driving his car or taking care of his son.

But in overturning a Superior Court ruling against the father, the
appeals court said the "mere usage of drugs," including marijuana, is
not the same as drug abuse that can affect child custody.

Drug abuse, the court said, must either be diagnosed by a doctor or
show up in a person's behavior, such as absences or poor performance
at work or at school, driving under the influence, or "recurrent
social or interpersonal problems." None of that happened in this case,
the court said.
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