The state cannot take children away from a mother who tests positive for marijuana use without evidence that shows her drug use endangers the children, the Oregon Court of Appeals has ruled.



In a decision issued today, the court reversed a Marion County juvenile court ruling that the state Department of Human Services had jurisdiction over two children, a 19-month-old and a 6-month old. The state had argued that the mother's marijuana use "presented a reasonable likelihood of harm to her two children."



But the appeals court agreed with the mother's argument that the state failed to provide any evidence connecting her behavior with risk to the children.



The children and the mother are identified only by their initials in the case.



The state first became involved with the children in October 2009 when it received a report that a man was selling methamphetamine at the family's home.



DHS workers visited the home and met the father, who appeared to be "under the influence of a controlled substance." The agency later learned that the father was a registered sex offender. The mother arrived home later and denied using drugs.



At the time, the workers found that the home was clean, the children had appropriate food to eat and they appeared "happy and healthy," the appeals court wrote in its decision. A DHS worker also had testified that the mother "appears to have appropriate parenting skills."



The parents agreed to have the two children stay with their maternal grandmother while DHS checked to see whether the father had completed his required sex offender treatment. During that time, a urinalysis from the mother came back testing positive for marijuana.



The mother admitted using the drug at a party a week or two earlier but said she did not use it frequently and never used it around the children. A test taken a few weeks later came back negative for marijuana and other drugs.



But the state had trouble getting in touch with the mother, who did not have a working phone and did not show up to a December 2009 meeting, according to the appeals court decision. She eventually did meet with DHS but failed to submit another urinalysis as requested.



It was "the accumulation of things" that led the juvenile court to conclude that the mother had a chemical abuse problem and find that the state had jurisdiction over the children.



But in reversing the decision, the appeals court said "the record lacks evidence showing that mother's use of marijuana, her 'chemical abuse problem' as found by the trial court, is a condition or circumstance that poses any risk to her children. That evidence is necessary to establish jurisdiction over the children."



The case goes back to the juvenile court, said Holly Telerant, attorney for the mother. She declined to comment on where the children are living currently. The Department of Human Services did not immediately have comment.



-- Helen Jung



