The Department of Child Safety (DCS) and the Arizona Medical Marijuana Act (AMMA): From the time these two were first introduced in court together, there has always been a need for more clarity. Unfortunately, when that clarity is given by an Administrative Judge, DCS rejects it.
The AMMA clearly states:
(ARS § 36-2813(D)) No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.
Hiding behind laws
However, for the last half of a decade or more, the Arizona Department of Child Safety has ignored the AMMA. The Department has managed to do this by hiding under the terms for “neglect.”
ARS 8-201 25. “Neglect” or “neglected” means: (a) The inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare, except if the inability of a parent, guardian or custodian to provide services to meet the needs of a child with a disability or chronic illness is solely the result of the unavailability of reasonable services. (b) Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found, or equipment is possessed by any person for the purposes of manufacturing a dangerous drug as defined in section 13-3401. (c) A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in section 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in section 13-3401 beyond the requirements prescribed pursuant to section 13-3620, subsection E.
In addition, in 2016 Rep. Kelly Townsend, R-Mesa, attempted to ban pregnant women from accessing the state’s medical-marijuana program. House Bill 2061 did not ban pregnant women, so much as it did STRONGLY warn, about 3 to 4 times the dangers of medical cannabis consumption while pregnant.
The warning reads as follows:
“WARNING: THERE MAY BE POTENTIAL DANGERS TO FETUSES CAUSED BY SMOKING OR INGESTING MARIJUANA WHILE PREGNANT OR TO INFANTS WHILE BREASTFEEDING.”
“WARNING: USE OF MARIJUANA DURING PREGNANCY MAY RESULT IN A RISK BEING REPORTED TO THE DEPARTMENT OF CHILD SAFETY DURING PREGNANCY OR AT BIRTH OF THE CHILD BY PERSONS WHO ARE REQUIRED TO REPORT.”
No one has challenged DCS’s perception of the law regarding the AMMA until now. For one medical marijuana patient and mom, who we’ll call Mother, the Department for which she previously worked was now her opposition in a fight. For that mother, it was not only a battle for the custody of her child but also a fight for the rights of medical marijuana patients in regard to the Central Registry.
The Central Registry is a confidential list of people with reports of child endangerment. The purpose of this list is to catalog people who are considered a threat to children and prevent those individuals from becoming employed as a teacher, daycare staff, or adopting a child in the future.
Nevertheless, this Mother, armed with her attorney Sonia Martinez, appealed DCS’s finding to an Administrative Court. DCS claims Mother “neglected” her son based on prenatal exposure to marijuana, even though Mother had a current medical card.
Pregnancy and Medications
Pregnancy and medications are a complicated road to navigate. Weighing out the risks and the benefits with your doctors is a touchy conversation to have, especially when your medication of choice is a Schedule 1 narcotic drug.
The medications you used to control both physical and mental health ailments before may not be safe for you to consume while pregnant. Add to that the complications that can come along with any pregnancy.
This is a scary time for women. Their bodies are rapidly changing in ways they didn’t even know possible. Physical issues can include persistent heartburn, swelling of the feet, not being able to see your feet, and hair in places one would not expect. After all, it’s not easy growing another human.
It’s not easy growing another human
According to the FINDINGS OF FACTS in this case, for the Mother, pregnancy was rough to say the least. She suffers from an intestinal disorder that causes pain in the belly, gas, diarrhea, and constipation, known as Irritable Bowel Syndrome (IBS). IBS is Mother’s qualifying condition as a medical marijuana patient. To make matters worse, her pregnancy brought about Hyperemesis Gravidarum.
Symptoms of Hyperemesis Gravidarum include severe nausea and feeling faint or dizzy when standing. It can also cause persistent vomiting, which can lead to dehydration. In black and white, it might not seem that bad. In reality, those symptoms mixed with pregnancy can have detrimental effects on both Mother and child. During her pregnancy, Mother only gained 20 lbs and required two hospital visits due to this condition. Even the Zofran Mother’s doctors prescribed lent little comfort.
Furthermore, the medications she used to control her anxiety and depression were Celexa and Buspar.
Celexa is a Selective Serotonin Reuptake Inhibitor (SSRI) which treats depression. According to an article by Web MD from 2003,
“Researchers In Finland found that mothers that took selective serotonin reuptake inhibitors such as Prozac or Celexa, had newborns that were four times more likely to experience early problems such as restless, tremors and irritability when compared with newborns whose mothers did not use SSRI.”
Buspar is not much better. Buspar is what Mother used to control her anxiety. Rxlist states, “Use during pregnancy is not recommended unless the potential benefit outweighs the potential unknown risk to the fetus.”
During Mother’s pregnancy she renewed her medical marijuana card. Court records state “[She] testified that she told her doctor who signed the certification that she was pregnant. She did this by acknowledging question #8 on the certification that makes mention of pregnancy.”
Complications with birth
Administrative Law Court documents state that when Mother gave birth to her son, he took “one breath and then stopped breathing.” After the baby was resuscitated, reports say that he looked “jittery.” Because of this, he was taken to the NICU for two days where he tested positive for marijuana. That is when a report was made to DCS, and a DCS investigator was assigned to the case.
The most interesting fact about this is that, Mother herself had previously worked for the Department of Child Safety for 3 years. At first, she worked providing in-home services, then she became a DCS investigator.
Now the tables were turned, and she found herself the one being interrogated. In court, Mother recalls her time employed at DCS as an investigator in her court testimony:
“After the AMMA was enacted, between September 2015 and May 2019, she was assigned to investigate 10 to 15 cases a year involving infant’s prenatal exposure to marijuana. [She also] testified that she was trained that, if a mother had a medical marijuana card, the marijuana exposure was to be treated like any other drug that was prescribed by a health care practitioner. The mother had to follow her doctor’s instructions. After the baby was born, as long as the marijuana was kept out of the reach of the children, she and her supervisor generally determined the mother’s prenatal use of marijuana would not provide the basis for a charge of neglect or abuse.”
This was the protocol she had been trained to follow while employed at DCS, but DCS did not follow the same protocol with her and her son.
Despite all the medications and known side effects
Despite all the medications and known side effects that Mother was prescribed to take during her pregnancy, DCS entered a finding of “neglect” for marijuana exposure.
Even though the discharge summary from Phoenix Children’s Hospital that was submitted into evidence by DCS, states, “the [newborn] in this case had intrauterine exposure to the addictive drugs Buspar, marijuana and Celexa” and noted his “jitteriness.” The discharge papers stated, “Mother besides reported high caffeine use and taking Benadryl while pregnant.”
Furthermore, Mother testified in Administrative Court that her “[son] suffered a stroke shortly after birth, possibly because he had spent too much time in the birth canal.” She also stated, she had stopped taking Buspar two months before the birth, which she believes is the reason why he was jittery.
The safety of the children
Regardless, DCS held firm with the testimony of Ms. Espinoza, the Regional Review Specialist assigned to this case. Court documents state, “Ms. Espinoza testified she has worked for the Department for more than 13 years and that the passage of the AMMA did not affect its position on newborns who had been exposed to marijuana prenatally. The safety of the children was still paramount.”
According to the finding of facts, Ms. Espinoza told the court that the mother’s possession of a valid medical marijuana card did not affect her decision to substantiate the allegation of neglect because a dangerous drug for the purposes of criminal liability could be a legal drug.
Additionally, the finding of facts that this judge took into account lacked information that came from further testimony of Ms. Espinoza, when she acknowledged to the court that, “she did not speak to mother’s doctors or consider whether Buspar, Cerexa, Benadryl and caffeine mother took during her pregnancy might have harmed the newborn.” On top of that, Ms. Espinoza testified that she did not know the possible prenatal effects of Buspar, Cerexa, Benadryl and caffeine on a fetus.
Defining AMMA’s role with DCS
With all these things considered, plus more, the Administrative Law Judge gave the following conclusion of law and, in doing so, defined AMMA’s role with DCS.
“Although AMMA did not change the definition of ‘neglect’ in the Department’s statutes, it changed parents’ and their treating healthcare professionals’ healthcare options for alleviating the adverse maternal effects of pregnancy to make a healthy baby’s birth more likely.”
Judge Diane Mihalsky points out the biases of the Department by stating:
“The Department does not seek to substantiate an incident of neglect against Appellant based on her use of Celexa and Buspar during her pregnancy, even though prenatal exposure to those drugs may pose a risk to a developing fetus.”
Following up, Judge Mihalsky adds more clarity by stating:
A person of ordinary caution or prudence would not believe, or consciously entertain a strong suspicion, that a mother who used any legal drug, including medical marijuana, that had been prescribed by her healthcare provider according to the provider’s instructions during her pregnancy exposed her child to an unreasonable risk of harm. Any other result would require a mother to second guess her healthcare providers’ instructions and advice meant to protect both her own well-being and the well-being of her child against the advice of her healthcare provider, which would be more likely to harm the fetus, as well as mother.
Administrative Law’s verdict
Due to the duties and responsibilities of an Administrative Law Judge,the verdict read as follows:
“Because the appellant used medical marijuana under her doctor’s care and according to their instructions during her pregnancy, the Department must amend its previous finding of neglect into the Central Registry against Appellant.
IT IS ORDERED upholding Appellants(Mother’s) appeal because the Department failed to provide probable cause to substantiate the proposed allegation that before [the date of the child’s birth],[mother] neglected [her son] by exposing him to [a] unreasonable risk of harm.
IT IS FURTHER ORDERED pursuant to A.R.S.8-811(N)(1) that the Department shall amend its finding of neglect to make it unsubstantiated and shall not enter the proposed finding of neglect against Appellant into the Central Registry.
Sore losers, DCS Director ignores AMMA again
This is the first time in Arizona’s history when DCS can no longer ignore the AMMA. Not only that, but now DCS has to amend the way they operate to reflect medical marijuana patients’ rights as parents. Therefore, this case sets a standard at which DCS has to be held.
This is not a normal situation for the Department. The Department is not used to having to change, especially to recognize medical marijuana.
And like any sore loser would do, DCS rejects the Administrative Law judges orders.
How can DCS do that?
As pursuant Arizona Revised Statues, 41-1092.08(B), that the director of an agency may do three things with an Administrative Law Order, except, modify or reject.
Not only did the Director of the Department reject the Administrative Law Judges orders, but the Director modified it, too. Modify is a nice word for the four pages of picking apart the Administrative Law Judge’s ruling, twisting and turning laws and facts back to how it best suits their claim.
IT IS THEREFORE ORDERED that the recommended order of the Administrative Law Judge is REJECTED and MODIFIED in accordance with this DECISION AND ORDER.IT IS further ORDERED that the Appellant’s appeal is denied.Signed Mike Faust
Mike Faust is the Director of Arizona’s DCS.
To summarize, the State Director of the Department of Child Safety, rejected an Administrative Court’s ruling to take the AMMA into account when removing children from their homes.
One would expect more from a government agency meant to protect children. Maybe.
The fight continues on
Don’t worry, the battle is not lost. The next step is to file an appeal against the Director of DCS’s modifaction and rejection to the Superior Court. Both Mother and her attorney Sonia Martinez are willing to appeal the decision all the way to the Supreme Court if needed to set a precedent in this matter.
DCS has ignored the Arizona Medical Marijuana Act long enough. It’s vital to the Department, as well as parents who are medical marijuana patients, that this debacle between the two laws seeks better understanding. The Department is using, and will continue to use, medical cannabis against parents until there is clarity; the clarity require to stop choking an already crowded system with harmless medical patients.