Family sues CPS workers who investigated after parents gave toddler CBD oil for seizures

The parents of a 2-year-old girl are suing the Department of Child Services case workers who they said threatened to take away their child after they gave her cannabidiol oil to treat her epilepsy.

Lelah Jerger, the child's mother, said Child Protective Services arrived at the Jergers' house in Huntingburg in September, after personnel at Riley Hospital for Children at IU Health reported her when she and her husband used CBD oil to treat their daughter, Jaelah, rather than Keppra, a prescribed medication.

CBD oil contains only trace amounts of THC and has no psychedelic effects.

Jerger said the CPS caseworkers told the parents to keep Jaelah on Keppra and required that they take her for weekly blood tests to confirm the girl was taking the drug.

Now, the parents claim that the blood draw of their child represents "a non-consensual search and seizure without a warrant" and violates the Fourth Amendment to the U.S. Constitution, according to the 11-page complaint filed Monday.

"This is about them understanding that we as citizens have rights too," Jerger said in an interview Tuesday. "They have a job to protect kids ... but we believe in our case it was a jump-the-gun situation."

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After leaving Riley, the Jergers took Jaelah to Norton Hospital in Kentucky, where their new neurologist said he was fine with their using CBD oil in addition to Keppra, the Jergers said.

But CPS still demanded that Jaelah undergo a weekly blood draw to ensure her parents were actually using the prescription medication, according to court documents. At her first blood draw, the hospital worker had to stick her three times and she screamed, the Jergers said in their complaint.

Right after the blood draw, the CPS worker also told Jerger she needed the results immediately, although the hospital said it might take a week, Jerger said.

"It seemed like they were vampires waiting for my daughter's blood sample," she said. "They came down with this hammer. It was relentless right off the bat."

Before the date for the next blood draw, the agency dropped the case after state Sen. Mark Messmer, R-Jasper, called Danny Lopez, Holcomb's legislative director, and Mary Beth Bonaventura, then the director of the Department of Child Services.

However, in their complaint, the family says that "to date, the Jergers have not received service of any filing" of DCS withdrawing the case.

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The ACLU of Indiana is representing the family and filed the lawsuit in U.S. Southern District Court. An attorney from ACLU was not immediately available for comment.

Neither of the two workers named in their individual capacities could be reached for comment. The Department of Child Services did not immediately respond to an email request for comment.

The family argues that the caseworkers' "requirement that J.J. (Jaelah) take Keppra represents an infringement into the Jergers’ fundamental familial relationship and, as such, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution."

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Gov. Eric Holcomb’s office previously has said CPS acted appropriately, working to ensure the child’s safety.

The legality of CBD oil was thrown into question after the passage of law last legislative session that created a CBD oil registry for epileptic patients. State excise police used the law to confiscate CBD products from nearly 60 Indiana retailers before the agency put a moratorium on the seizures.

At the time of the CPS caseworkers' visit, Attorney General Curtis Hill had yet to issue an opinion on the legality of CBD oil. Since then, he's said the substance is illegal under current Indiana law.

Three bills that would legalize CBD oil with trace amounts of THC, the substance that produces a "high," have been passed in at least one of the two General Assembly chambers this session. The substance will likely be legalized at the end of the legislative session in March.

Jaelah turned 2 last Friday. Her new doctor has taken her off the Keppra and she is doing well, her mother said.

"That's our daughter. We weren't doing something to harm her. We were doing something to help her," she said.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.

Call IndyStar staff reporter Shari Rudavsky at (317) 444-6354. Follow her on Twitter and on Facebook.

Call IndyStar reporter Kaitlin Lange at (317) 432-9270. Follow her on Twitter: @kaitlin_lange.