Did you know that if you smoke pot, child protective services can take away your kids? And if you don’t provide them with many months of clean, regular random drug tests, and possibly also complete a substance abuse program, parenting class, and individual therapy, they can even adopt them out permanently.

With California’s legal marijuana initiative on the ballot in November (Prop. 19), I figure it’s a good time to discuss the related issues of 1) what happens to parents who get caught using cannabis, and 2) how you can reduce your chance of getting your kids taken if you’re one of them.

I deal with this on a weekly basis. People are usually surprised and really angry to find out what the child welfare laws can do to them for using or possessing drugs, even without any criminal charges or convictions. And it’s not just dirtbags. Sometimes it happens to normal, likeable, responsible people you wouldn’t think there was anything wrong with.

I have to explain to many unhappy parents that a “DA reject” of their possession or dealing charge has no effect on their resulting case in children’s court. Their kids are staying in foster care. Or maybe they never even got arrested. Someone who didn’t like them — like their ex — just called in a referral to the child abuse hotline. Maybe it wasn’t even for pot, maybe it was for coke or meth, and they marched indignantly down to the testing site unaware that they screen for every drug, not just whatever they were accused of. Or, more commonly, the children were removed from the other parent due to something else, and this parent’s use got talked about when they interviewed the other parent. Or maybe not, but maybe when they ran your criminal record — which they always do as part of their investigation — they found a pot ticket from a couple of years ago. Or not a conviction, but just an arrest for possession. Or no arrests, but several calls to the cops from or about your address claiming drug-related activity. (Bet you didn’t know there are records kept of cop calls.)

Any little thing, they’ll use to get you to drug test, long before you get appointed a lawyer who’d tell you not to do it. And once they’ve got a test, with any level of marijuana in it, they’ve got you. And they’ve got your kids, probably for three months at least whether you take it to trial or settle. Don’t think of this like a criminal court case. These courts allow hearsay, the standard of proof is not “beyond reasonable doubt” but rather the same as in civil court, and there’s no way to exclude evidence on a Constitutional basis. Worst of all: You can’t bail your kids out of foster care while you fight your legal battle. This is why the better trial or appellate prospect I think a parent is, the less likely he or she is to want to be my guinea pig. Most parents with a shot at winning a protracted fight don’t want it.

Yet there is no law specifically prohibiting a parent from possessing or using illegal drugs. If you just read the actual law the department uses, you’d mistakenly think it set forth a high standard for taking away someone’s kids. Here it is, Welfare and Institutions Code section 300(b):

(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or
substance abuse.

[Emphasis added.]

There is the requirement, from caselaw, that there be a “nexus” between the drug use and the substantial risk. In practice, the nexus can be almost anything. Mom has a history of cocaine abuse? Then dad’s teeny-tiny level of marijuana from his boys’ night out two weeks ago is a substantial risk to his 11-year-old and 9-year-old who say they’ve never seen any drugs around the house and just want to go home. (I got those kids home to dad at the first hearing, but he had to get on random drug testing and test clean for four months).

What it’s important to understand is that the department has some discretion over whose kids get taken away. Their opinion as to whether a child is “at risk” counts. The decision is subjective. But its not so subjective to the judge. If the social worker removes, the judge is almost certainly going to uphold it. So you really have to avoid getting your kids taken away in the first place. Or, at least set things up so the judge will return your children at the initial hearing, which rarely happens.

Understand there are no guarantees. This system has immense power and operates outside public scrutiny (proceedings are closed to the public). But here’s the advice I wish I could give my clients before they become my clients:

1) Keep your marijuana in a locked box out of reach of your children.

It’s an easy nexus when the drugs are “within reach of the children.” You need to make sure they are unequivocally not, and a locked box or safe is one of the few things I’ve seen be convincing. Understand that if a situation requires your explanation, you’re sunk. The bench officer (you don’t get a jury) will not care about your argument that your children are not allowed in your bedroom; how they are never alone in your bedroom; how they never go under the sink or the closet or your dresser drawers; the kids don’t eat anything green; that the stuff in the ashtray was mainly just cigarette butts except just one tiny old roach that wouldn’t do anything to anyone. The court assumes that all children will climb to any shelf, scour a property like CSI, and consume anything they can get their grubby little hands on.

This is also true of firearms. Make sure they are stored separately from the ammunition and that the ammunition is locked up. What’s that you say, you thought guns were legal? Sure, for you to own. That doesn’t legally mean your kids aren’t at risk from it, and the child welfare system hates guns.

2) Don’t test if there’s any possibility you’ve got anything in your system.

And don’t tell a social worker you “just smoke pot.” There are a lot of normal, upstanding citizens who don’t consider smoking pot a big deal. Don’t think that just because you hang around them, that means people everywhere are like that. More importantly, the law isn’t like that. There are also a lot of people who think anyone who uses recreational substances is evil or crazy. Many of those people run things. There are also many cool people who happen to work for people in the first category, and they’ve got to do what they’ve got to do.

They may tell you they can’t release your children to you without a test. That may be true, but they sure aren’t going to release them with a dirty test. They’ll use that dirty test to file a count on you that you are a current substance abuser and should have to complete a drug rehabilitation program.

3) Get your medical marijuana letter now, before anyone challenges you on your smoking.

As you may know, California already sort of, kind of, legalized marijuana by calling it medicine. This requires people to have a physician’s letter that for all practical purposes, any adult can get. This makes it legal — under state law — for you to not only possess and use marijuana, but to grow it. It’s not legal federally. Another problem is that just because it’s legal doesn’t necessarily mean you can safely parent on it. So you’ll probably still have to test regularly so they can determine your “levels,” even though there’s no legal level for THC in your system.

But everyone knows that in many cases it’s BS. People get those letters mainly so they can shop at the groovy “dispensaries.” You’re a lot less credible if you march in waving your letter after you’re accused of having a problem. Because then it means you were using your “medication” unprescribed and therefore, illegally.

If you’re going to smoke, do have one of those letters, even if it’s BS. But get it now, before you need it.

4) Don’t ever do it around your kids or let your kids see it. And for god’s sake, don’t ever let your kids around it if you grow it. In fact don’t grow it. I don’t care that the statute says you can, don’t.

The statute is vague as to how much you can grow. Cops have a very unsympathetic interpretation of the statute. And if they arrest you for it, which they’re doing right and left these days, the department considers you a drug dealer. Working out of the children’s home. Sounds bad, doesn’t it? You are exposing the children to drugs, and exposing them to illegal activity. This is not a close question for the court. I’ve had more than one nice family get their kids removed because they thought they were running a legitimate business on the right side of the law, but the cops disagreed. Cops arrest you, then call the social workers.

5) Don’t live like a stoner.

Your argument, ultimately, is that you can parent despite use of an illegal recreational drug. This puts you under a lot of scrutiny. If a social worker thinks your place is dirty, guess what, your rebuttal testimony about how it wasn’t that bad isn’t worth much. If you’re not taking the kids to the doctor; or you’ve had two DUIs in the past two years; or you’re geting evicted; or you get arrested for fights with the kid’s other parent, the court is unlikely to find that your parenting is unharmed. It’s kind of like arguing that sure, you were drunk, but you crashed your car for unrelated reasons. It doesn’t work.

Will legalization solve parents’ legal problems with marijuana? Probably not, but it will help a lot. At least there won’t be the argument that the children are exposed to illegal activity. Authorities will have to prove that your use of a legal substance impacts your parenting such that your children are at risk in your care.