Not all marijuana use is 'chemical dependency' that could lead to termination of parental rights

|The Volokh Conspiracy |

A marijuana plant in Denver (AP).
A marijuana plant in Denver. (Associated Press)

A trial court ordered that J.B.'s parental rights should be terminated because of his continuing marijuana use; Missouri law provides that parents can be stripped of their rights if they have a "chemical dependency." But in In the Interest of K.M.A.-B., decided this month, the Missouri Court of Appeals held that not all marijuana use is "chemical dependency." Here are the largely uncontested facts (some paragraph breaks added):

K.M.A.-B. was born on May 11, 2012. He had been exposed to methadone in utero and remained hospitalized for weeks after his birth. His mother admitted using heroin before and after the child's birth, and she could not care for him. The child was taken into custody by the Children's Division on July 2nd on allegations of abuse and neglect by his mother. Ultimately, the mother was incarcerated and her parental rights were terminated in the same judgment as Father's, but are not at issue on appeal.

At first, the child's biological father was unknown to the Division. Father was identified a few days later as 27-year old J.B. Father had never been married and had no other children. He was no longer in a relationship with the child's mother; he said he broke off that relationship when he learned she had problems with prescription drugs and heroin. Father was employed full-time as a roofer and carpenter and remained gainfully employed throughout the proceedings. Father owned his own three-bedroom home in St. Charles County and maintained stable housing, which the Division found suitable with no concerns, throughout the proceedings. Father is a high school graduate, and has been on his own since he was seventeen.

Father indicated at the protective custody hearing on July 6th that he wanted custody of the child. The trial court granted Father supervised visitation, and he met with the child four times over the next month. Every visit was reported to be appropriate—Father held and fed the newborn, brought him clothes, toys and supplies and asked about his health and what else he needed. Other than the first visit, which was at the mother's home, all of Father's visits over the course of this case were conducted at the Division's social service agency. Father failed to show up for one visit and had to cancel five others over the next two and half years. . . .

Father had six more visits with the child between the beginning of September and the end of November 2012. Again, those visits were deemed appropriate by the Division's case managers: Father was attentive to the infant, held him, talked to him, consoled him calmly when he cried and played with him. Father brought toys, clothes and supplies, inquired about the child's health and asked what else the child needed. . . .

Father completed a parenting assessment with a psychologist in December of 2012. Father told the psychologist he smoked marijuana "rarely," only a couple of times a month, and denied being an addict. He told her that he converted to Rastafarianism after he came under scrutiny by the Division and that sacramental marijuana smoking is part of that religion, which is therefore protected under the Constitution. He stated that his marijuana use does not negatively impact his life and that his work and financial success reflected this.

The psychologist concluded that Father had no cognitive impairment or significant psychiatric problems. He had "unusual beliefs" and was immature and stubborn, as evidenced by his assertions regarding conversion to Rastafarianism. But he had also been independent and self-sufficient since he was a teen, successfully meeting all of his financial obligations without support. Father was not apt to admit faults and appeared to underreport any difficulties he had, including the frequency of his marijuana use. One screening test the psychologist used indicated a low probability of a substance disorder.

Under the DSM-IV in effect at the time, Father met the criteria for a "cannabis abuse" diagnosis. The doctor concluded that Father appeared "genuinely committed" to parenting his son and that his "parenting beliefs and expectations with regards to his child appeared to be generally appropriate and practical." She recommended he get hands-on parenting assistance if the infant was returned to Father's full custody. She also recommended continued drug screens: "Serial positive screens, particularly those that reflect high levels of THC, would indicate the need for a referral to drug treatment." . . .

Father continued to use marijuana, continued to have positive drug tests for marijuana (or to refuse drug tests), but continued to visit with the child under supervision and "continued to play and interact appropriately with the child and bring appropriate clothes, toys and supplies for him." Because of the drug use, the trial court ordered that Father's parental rights be terminated. But the Court of Appeals reversed:

There was no substantial evidence to support the trial court's finding that his marijuana use constituted a chemical dependency as set forth in the statute. Therefore, that condition cannot support termination either on grounds of abuse or neglect or failure to rectify. . . . Father's refusal to comply could support termination on the failure to rectify ground only if there was also an adequate finding supported by substantial evidence that the drug use itself was potentially harmful to the child. There were no such findings connecting Father's use of marijuana to harm to the child. . . .

"Poor conduct or character flaws are not relevant unless they could actually result in future harm to the child." Without evidence that "clearly establishes" the parent's current condition and how it impacts the parent's "present and future ability to adequately parent" the child, the parent's "fundamental liberty interest in preserving the parent-child relationship is terminated on the basis of speculation instead of verifiable facts." Therefore, courts must also analyze the parent's conduct or condition for the following: (1) is there sufficient reason to believe that it had a detrimental impact upon the child, (2) does the conduct or condition and its accompanying impact on the child meet the requisite severity to support termination and (3) is there a likelihood of future harm to the child by continuing a relationship with the parent. For some types of parenting conduct and conditions, the requisite impact and level of severity is specified in the statute itself. Chemical dependency is one such condition.

Chemical dependency is of sufficient severity to support termination only if it (1) "prevents the parent from consistently providing the necessary care, custody and control over the child" and (2) "cannot be treated so as to enable the parent to consistently provide such care, custody and control." In other words, not all chemical dependency is sufficient to support termination. There must be evidence that the parent has an untreatable addiction that renders the parent unable to adequately care for the children.

First, the court did not indicate what evidence it relied upon in reaching the conclusion on which this entire factor is premised: that Father's marijuana use was an actual "chemical dependency." The juvenile officer argues that dependency can be inferred from the evidence of Father's consistent use of this drug and his unsupported justifications for his use, showing that Father was just a "garden variety pothead" who refused to quit.

The evidence certainly shows that Father would not stop using marijuana, but it does not show that he could not stop. There was no evidence of a dependency. No one opined that Father had an addiction. Nor is it necessarily true that Father's diagnosis of "cannabis abuse" equates to a conclusion of cannabis dependence. Surely one can abuse a substance, even repeatedly, without being dependent on it or addicted to it. . . .

Second, even assuming it did amount to an addiction, there is no evidence or even findings by the trial court that Father's marijuana use itself—as opposed to his "pigheaded" refusal to produce a clean drug screen—prevented him from providing adequate care for the child. At all relevant times, Father maintained a job, had a suitable home ready for the child and consistently provided for the child's needs. It is undisputed that Father had consistently appropriate visits with the child, in which he fed, played with, talked to, disciplined when necessary and encouraged the child. Father was able to care for the child at those visits, even though he was also using marijuana during that time period outside of the child's presence.

There was no evidence that he was ever under the influence of marijuana in the child's presence. Here, concluding the Father is unable to provide care for the child is contrary to the evidence of his ongoing financial support and physical capabilities at his supervised visits. . . . No . . . clear, cogent and convincing evidence connecting Father's marijuana use to an inability to care for the child or showing it to be an untreatable addiction exists here. Strictly construing the statute as is required, there was no substantial evidence that Father's marijuana use was a "chemical dependency" sufficient to support the abuse or neglect ground for termination under Section 211.447.5(2). . . .

While the evidence here did not show that Father's drug use amounted to a chemical dependency, it certainly could have constituted a potentially harmful condition. But there must be a finding connecting the drug use to harm to the child and clear, cogent and convincing evidence to support it.

Here, there was no such finding, and the evidence did little more than demonstrate the potential and inherent risks of using any illegal mind-altering substance: namely, that using marijuana while driving may pose a risk of physical harm to a child in the car and, because it is illegal, there is also a potential risk of legal problems. But these potential risks of smoking marijuana—even if they are inherent or obvious or a matter of common sense—were simply not the thrust of the trial court's concern or the basis of any of its actual findings in this judgment.

Rather, the court's main problem with Father was his stubborn refusal to follow the court's orders and the Division's plan and his immature rationalizations for his behavior. Regardless of how frustrating Father's conduct was throughout these proceedings, it is not enough to simply say that Father did not meet a goal of the service plan and did not adjust his circumstances to become and remain drug free without also making an explicit finding based on clear, cogent and convincing evidence that use of the drug was itself a potentially harmful condition. . . .

Reversing this termination is not intended to condone Father's marijuana use—or any parent's illegal drug use or abuse of drugs or alcohol—any more than it condones his obstinate refusal to follow the court's orders. But in this judgment and on this record, there is a troubling combination of misstatements or misapplications of the statutory requirements [by the trial court] and insufficient or unsupported findings of the factors to support grounds for termination. Given the gravity and finality of termination, this judgment cannot be affirmed with these deficiencies. . . .