Washington State Denies Fit Father Custody Due to His Legal Use of Medical Marijuana

October 14, 2013 by Robert Franklin, Esq.

Another day, another parent denied custody of a child due to the adult’s use of marijuana that’s 100% legal under state law. Read about it here (Spokesman-Review, 10/13/13). This time it’s Spokane, Washington resident Billy Fisher who uses marijuana per a doctor’s prescription to manage pain he’s suffered from a back injury since 2007. In 2012, Washington State decriminalized possession of small amounts of pot for private, recreational use. At the same time it left in place laws governing the use of marijuana for medical purposes under the direction of a physician.

Billy Fisher is authorized to use marijuana to treat his back pain. He tried prescription pain-killers, some of which were opiate-based, but found they impaired his ability to work and earn a living. He says that marijuana does a better job of controlling his pain while allowing him to hold a full-time job.

When the state’s Department of Social and Health Services took his infant daughter away from Fisher’s estranged wife, apparently due to abuse or neglect, it turned to him as a possible placement for the little girl. But on discovering his pot usage, the DSHS decided Fisher would have to comply with a 30-day inpatient chemical dependency program. That would mean Fisher would have to take a month off work and possibly lose his job just to satisfy the demands of a “chemical dependency assessment trainee” employed by DSHS.

Just what said “trainee’s” reasons were for demanding that Fisher take part in the program have never been made clear. Neither have the trainee’s qualifications. What is clear is that Fisher has never had a problem living as a fully-functioning and productive adult, even while dealing with his chronic back pain. Medical marijuana assists him in that. What’s also clear is that a medical expert testified on Fisher’s behalf saying his pot usage didn’t warrant an inpatient dependency program.

Given that no one but the DSHS trainee has never questioned his abilities, and the fact that he’d lose a month’s work and pay, Fisher refused to take part in the program. So the DSHS is refusing to allow him to have custody of his child who presumably is in foster care. Amazingly, Family Law Commissioner Valerie Jolicoeur endorsed the agency’s position. As of now, Fisher is without his daughter and she has neither a mother nor a father.

What’s also true is that Washington law stipulates that no parent may be refused custody of his/her child solely because the parent uses pot for medical purposes. The DSHS darkly warns that their denial of custody to Fisher isn’t “solely” due to his medical pot usage, but so far the agency hasn’t said what other factors they’re relying on to keep this father from his daughter and she from him.

Decades of constitutional law say that the right to be a parent to your child is perhaps our single most basic right. Indeed, some jurists say that right is a part of “natural law” that precedes the Constitution itself. Parental rights, so the Supreme Court has said, cannot be taken away or abridged without the state’s showing a parent to be unfit. Needless to say, the State of Washington has done nothing of the kind in Billy Fisher’s case. How could it? So far it’s barred him entirely from seeing – and therefore being a parent to – his daughter.

We see this with disturbing frequency. State child protective agencies routinely take children from parents without the slightest demonstration of unfitness. Now of course those agencies would argue that, in some cases, it’s an emergency; the child’s life or health is in danger and there’s no time just yet to demonstrate unfitness. Fine, but that’s of course not true in Fisher’s case. Again, the state’s whole case against him consists of his entirely legal use of marijuana to treat his back pain. Does that have something to do with his fitness to parent? If it does, no one’s said so and I for one can’t see it. After all, here’s a man who, for years has performed his day job while using medical marijuana. If he can do that, he can probably take care of a child.

One issue here is the tendency of child welfare agencies across the nation to use their power over parents to make policies that are frankly at odds with those of the state in which they operate and that funds their every activity. We see it time and again in state after state. Let a parent in Montana speak out in favor of medical marijuana and the next thing she knows – poof! – her kids are gone. Let another parent use medical marijuana and the state takes the children on the bizarre rationale that pot in the home attracts violent criminals who are in turn dangerous to children. Never mind that nothing of that sort has ever happened at the parent’s house and never mind that the same rationale could be used against a parent with, say, cash or consumer electronics in her house.

Another question is why DSHS seems to think that pot is dangerous when used by Fisher, but, say Oxycontin is not. Would the agency stand between Fisher and his daughter if he were using prescription pain relievers in an appropriate way? What if Fisher had no back pain at all, but routinely downed a couple of Scotch and sodas after work. Would the DSHS swoop in and grab the child then?

Yet another is the fact that DSHS has never once said that, if Fisher attends the 30-day inpatient program, he’ll get custody of his child. No, what they’ve said is that he has to do that and then we’ll see. So, as it stands now, there is nothing Billy Fisher can do to ensure that he can have custody of and care for his little girl.

Then there are the usual issues like the fact that children on average do far worse in foster care than they do in parental care. Study after study shows foster children being more likely to be abused both physically and sexually, being exposed to illegal drugs, having higher rates of emotional turmoil and doing less well in school than do children in parental care. That’s even true for kids with parents who are marginally abusive.

Here’s the Washington State Office of the Family and Children’s Ombudsman’s 2011 report on, among other things, the deplorable state of children in foster care there. It notes, for example, “a pattern of severe child abuse and neglect in adoptive, pre-adoptive and guardianship placements.” That’s where the DSHS wants Fisher’s child to be rather than with him.

Child welfare agencies show a marked and altogether inappropriate preference for foster care. That may be because states receive substantial payments from the federal government for every child who’s adopted out of foster care, a fact the Washington Ombudsman notes with alarm. So it’s no surprise that states want as many children in foster care as possible, particularly very young ones. They of course are the easiest to place for adoption.

Then there’s the fact that Washington State is one of several western and northern states that make up the Ninth Federal Judicial Circuit. Several years ago, the Ninth Circuit ruled that, when a state takes a child from one parent, it’s a violation of the other parent’s civil rights for the state to not give him/her the opportunity to have the child placed in his/her home. You’ll note that’s just what Washington’s DSHS did; when it took the child from her mother, it notified Fisher.

You’ll also note that it seized on a very shaky justification for refusing him access to his child, i.e. the opinion of a chemical dependency assessment trainee. In other words, it’s doing one way what the Ninth Circuit ruled it couldn’t do another way. It’s channeling a child into foster care who almost certainly doesn’t need to be there.

And of course if the state succeeds in adopting the child out of foster care, that too will be unnecessary. Unless there’s something very serious we’re not being told, Billy Fisher is a fit parent and therefore should get custody of his daughter. But there’s money to be had in foster care adoptions, so Billy Fisher must fight the power of the state that unconscionably uses our most vulnerable citizens as weapons against their parents.

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