C.A.: FATHER'S MEDICAL MARIJUANA USE POSES THREAT TO CHILDREN

This district's Court of Appeal has rejected a father's challenge to
a juvenile court order he said forced him to choose between the
right to use medical marijuana and his children.

Holding in an opinion ordered published yesterday that the
children's physical and emotional health and safety was the
paramount interest, and threatened by the father's manner of
marijuana use, Div. Three affirmed an order requiring the man to
engage in drug counseling and testing.

The children, identified as Alexis E., Samantha E. and Elijah E.,
were detained by the Los Angeles County Department of Children and
Family Services in December 2007 after being placed with their
mother when their father was arrested for domestic violence.

The father, Patrick E., had separated from the children's mother
five years earlier, and the children's detention stemmed from
reports that he had been involved in physical altercations with
two different girlfriends, both in the children's
presence, resulting in a domestic violence conviction from
the first altercation, and pending charges on the second.

The alleged victim declined to press charges in the second
altercation, but the mother told social workers she had been a
victim of the father's domestic abuse.

Negative Opinions

The children indicated a positive view of living with their mother,
but expressed negative opinions about living with their father,
saying the father was "never around," and describing him as being
"dangerous," including yelling, scaring them, and inflicting
corporal punishment.

They also described his altercations with his girlfriends as being
mutually assaultive, and expressed dislike for the smell of his
marijuana smoking, and its effect on him.

The father had a prescription for medical marijuana, although he
admitted having used marijuana before obtaining the prescription,
and he testified that he smoked one marijuana cigarette each morning
and one at night for pain management resulting from knee surgery.

He also said he used the drug to help with anxiety stemming from
major depression and recurrent and severe panic disorder, and denied
smoking around the children, but Los Angeles Superior Court Judge
Marilyn Mackel found that the court had jurisdiction based on the
father's history of domestic violence and substance abuse, and the
risk that his continued marijuana use posed.

Jurisdictional Finding

On appeal, the father challenged the court's jurisdictional finding
as to his marijuana use and the threat it posed, and objected that
Mackel's order requiring drug counseling and testing violated his
right to use medical marijuana, but Justice H. Walter Croskey
rejected both theories.

He explained:

"[W]e have no quarrel with Father's assertion that his use of
medical marijuana, without more, cannot support a jurisdiction
finding that such use brings the minors within the jurisdiction of
the dependency court, not any more than his use of the medications
prescribed for him by his psychiatrist brings the children within
the jurisdiction of the court. However, we havethe 'more' that
supports the court's finding."

Noting that the father's admitted pre-prescription use of marijuana
supported the juvenile court's finding that the father had a history
of substance abuse, Croskey said that the risk of harm to the minors
was demonstrated by the presence of secondhand smoke to which they testified.

The justice reasoned the conclusion was supported by the absence of
any authorization in the state's Health and Safety Code for medical
marijuana users to use the drug within 1,000 feet of schools, or
recreation or youth centers, giving rise to a "reasonable
inferencethat use of marijuana near others can have a negative
effect on them."

Croskey similarly opined that the children's testimony as to the
father's negative demeanor after using marijuana--given his mental
condition--demonstrated a risk of harm, and suggested that the
father's marijuana use might be the cause of his anxiety problems.

Justices Patti S. Kitching and Richard D. Aldrich joined Croskey in
his opinion.

The case is In re Alexis E., B207752.