Parents losing custody for medical marijuana use Families claim social workers unfairly snatched their kids
December 11, 2013
Joshua Emerson Smith, San Diego CityBeat
During a telephone conversation with her husband, Wendy Jones heard a loud bang through the receiver right before the call went dead. On her way back from a work trip to Anaheim in early 2012, she’d called her husband Mark to say she was less than an hour away from their East San Diego County apartment.
After several failed attempts to call him back, she arrived home to find their apartment ransacked. Mark and their 6-year-old son John were gone. She frantically dialed 911 and described to the dispatcher what looked like the scene of a burglary.
Then Wendy saw a business card of a county social worker lying on a table. Ending the emergency call, she dialed the number on the card. A social worker picked up and told her that San Diego County Child Welfare Services had removed her son and placed him at the Polinsky Children’s Center in Kearny Mesa. The social worker refused to provide additional information.
Only later would Wendy learn that San Diego police officers had held her husband and child at gunpoint for an hour while they searched the home. Despite Mark having a government-issued medical-cannabis identification card, police arrested him for possession of 10 pounds of marijuana and called Child Welfare Services to remove the Joneses’ son.
To this day, Mark is fighting charges of child endangerment for the bags of cannabis he kept in a closet. Both sides dispute whether the closet was locked. The child tested negative for any drugs and told social workers he’d never seen anything resembling cannabis.
(CityBeat agreed to a request by the family’s lawyer, Lance Rogers, to withhold their true names to protect the minor.)
This situation may be more common than many people realize. Regardless of criminal charges against a parent, a child’s custody is determined by a judge in Juvenile Dependency Court. In many cases, parents have their child removed without facing any charges.
Since 2011, San Diego County Child Welfare Services has taken custody of children, based on the presence of medical cannabis in a home, from at least five families, according to information available to CityBeat by press time. In all cases, the parents say, social workers pressured them into discontinuing their use of medical cannabis in exchange for the return of their children.
While county officials would not provide the total number of cases in which children were removed from their homes as a result of parents using medical cannabis, advocates have increasingly voiced concerns about such situations.
Based on the number of people who seek legal advice from local advocacy organization Americans for Safe Access, San Diego Chapter President Eugene Davidovich estimated there have been at least 35 cases during the last three years.
“I think that number’s a conservative estimate,” he said. “It comes up constantly. Every month, someone comes to a meeting that tells us about it but doesn’t want to go public.”
Child Welfare Services maintains that in all cases, it establishes abuse or neglect in connection with the medical-cannabis use. The county’s policy states: “Medical Marijuana cases are to be treated the same as cases that have alcohol as the primary substance of choice when it comes to abuse or addiction. The [Child Welfare Services social worker] must be able to document the impact of the Marijuana use on the child(ren) in the case where its use is an issue.”
Children are not removed based solely on the use of medical cannabis, said Connie Cain, spokesperson for Child Welfare Services. “If a parent is using medical marijuana, and they’re using as authorized, and there is no negative impact on the child or children in the home, then that’s great.”
In order to determine harm, a social worker will interview a wide range of people who have regular contact with the family, such as teachers, neighbors and relatives, Cain said. “You really just have to look at all the indicators around,” she said. “You have to look at the big picture, talk to many different people.”
However, whether cannabis leads to harm in any particular situation is rarely challenged in court, said San Diego attorney Gerald Singleton, who specializes in child-custody cases.
This allows social workers to exploit their position, he said. “I don’t want to over-generalize because there are a lot of times social workers do follow the law, but in the times that people have come to me—medical marijuana patients—there has been absolutely no evidence of abuse or neglect.”
Parents overwhelmingly waive their legal rights and submit to monitoring in order to regain custody of their children, Singleton said. A child is often returned within weeks or months if a parent agrees to submit to regular drug testing and in-home inspections.
In recent months, Singleton has represented Michael Lewis, a Gulf War veteran and medical-cannabis patient who fought Child Welfare Services in court after a social worker removed his 2- and 4-year-old sons. Although a Superior Court judge upheld charges of neglect, a regional appeals court overturned the decision and returned custody to the father after nearly a year.
Lewis is now suing the county for violating his civil rights.
“It seems to me what happened here, and what has happened in some other instances, is that social workers were not interested in whether or not people were using medical marijuana legally,” Singleton said. “They went ahead and removed the children or threatened to remove the children as a way to force people to stop.”
The San Diego County Counsel’s office, which represents social workers in such legal cases, did not respond to CityBeat’s request for comment.
The Jones family has also filed a civil lawsuit against the county, alleging officials not only unlawfully detained their son, but also failed to protect him while in custody.
Believing their son had been physically and sexually abused by children at the Polinsky Children’s Center, they eagerly agreed to waive their rights to fight the case in Juvenile Court and submitted to monitoring.
Their son was returned after about a month, but at the facility an older boy forced the Joneses’ son to kiss, using tongues, among other acts, according to the family’s lawsuit, which also claims that Child Welfare Services officials tried to conceal the abuse. After that incident, the Joneses’ son was assaulted by another boy, the family alleges.
“It turns out, our client was at much greater danger at Polinsky than he would have been at home,” said Shawn McMillan, the attorney representing the Joneses in their lawsuit.
Child Welfare Services declined to comment.
Not everyone has experiences as traumatic as the Jones family claims to have had. However, San Diegans are not the only ones expressing concern that social workers treat medical-cannabis patients unfairly. In recent years, several cases around the state have made headlines.
“There’s been pretty atrocious behavior in other parts of the state,” said Dale Gieringer, executive director for the California chapter of the National Organization for the Reform of Marijuana Laws. “We get complaints about this all the time—kids being taken away, especially when people are growing [cannabis] at home. It’s one of the leading concerns that patients express to us.”
In a precedent-setting case, an appeals court decision in Los Angeles County ruled last year that child-welfare agencies must establish abuse of medical cannabis before removing a child from a home. In opposition to a lower court ruling, the appellate judge found that use of medical cannabis alone is not akin to substance abuse.
This case and others like it have prompted counties, such as San Diego, to change their protocol for dealing with medical-cannabis patients and their children, McMillan said.
“Up until recently,” he said, “it’s been [Child Welfare Services’] position that marijuana use is essentially illicit drug abuse, and the fact that you have a doctor’s recommendation doesn’t really matter— your children are in danger because you’re essentially an unlawful drug abuser.”
While some social workers have started coming around to the idea that cannabis has legitimate uses, many continue to struggle with the idea, McMillan added. “There’s a big difference between drug use and drug abuse, and Child Welfare Services is having a problem emotionally drawing that distinction. It’s really a systemic problem on their side.”
Cain, of San Diego County Child Welfare Services, denies that medical-cannabis patients are targeted unfairly, arguing that the only goal is to protect children.
“Clearly, we don’t want to have any marijuana within reach of young children,” she said. “We look at different factors to determine—if it’s marijuana, if it’s alcohol, if it’s prescription drugs, whatever it is—we really look at that and determine if that particular use or abuse is negatively impacting the child and, therefore, making the child unsafe in the home.”