Cannabis Is Safer Than CPS

A look at the “protective” goals of the child welfare system in light of the growing national acceptance of medical cannabis.

Cannabis Crop

Photo by Alexodus is licensed under CC BY-NC 2.0


Social workers think a child “might die” from it. They call poison control hotlines to get information about it. An infant is removed from good parents because their home “smells like marijuana.” A graduate student has four children removed because cannabis plants are found in the home. A Drug Endangered Child Expert testifies as an expert for the County that “CBD” refers to a “new strain of butter or wax” that is being made in that particular county. Judges think a parent “can get a prescription from any Dr. Feelgood.” County Counsel worry parents “might get high and drop an infant on the floor.” In chambers, a Judge asks about my cannabis expert, “Is he going to show up in Birkenstocks and a ponytail?” and immediately breaks out in uncontrollable laughter.

There is a lot of confusion and ignorance about what risk of serious physical harm to a child, if any, exists in the case of a parent who is also a qualified patient that uses medical cannabis. As more and more states continue to acknowledge cannabis as a medicine, the debate over what conduct qualifies as “serious physical harm” will become more relevant. This debate needs to be examined in the context of research and science instead of generalized suspicion, stereotyping, bias and even fear. In my experience, these cases stand in stark contrast to others in the dependency system, i.e., children of parents who use medical cannabis responsibly are not at any substantial risk of serious physical harm or illness.

Jennifer Ani

Jennifer Ani

What Is Cannabis?

Cannabis is the name for a genus of flowering plant with three main varieties: sativa, indica and ruderalis. Its medicinal and psychoactive effects derive from at least 85 different compounds called cannabinoids, the most abundant of which are cannabidiol (CBD) and delta-9-tetrahydrocannabinol (THC). THC is the only cannabinoid with psychoactive properties. CBD-only strains are available and have no psychoactive properties.

Why Cannabis Is Safer Than CPS

We all recognize the connection between child abuse cases and drug abuse. However, we also know that the parent-child bond, or attachment, is critical to child development. The younger the child, the more likely it is that breaking that attachment will cause serious developmental and emotional problems down the road.

Qualified patients can be good parents. They can also be bad parents. The issue is not cannabis, but the same issue we ask in every case: where is the risk of serious physical harm or illness because of the parent’s use of cannabis?

If the concern about cannabis is due to the psychoactive effect produced by THC, then if the parent is using CBD-only, the referral should be closed because that concern will not be present.

If the concern is secondary smoke, well, we do not remove kids from parents who smoke tobacco. Second hand, tobacco smoke kills upwards of 400,000 people each year. Incredible but true, second hand cannabis smoke has never been responsible for a single death.

We do not remove children as a result of a parent’s responsible alcohol use. We do not remove because of responsible use of prescription medicine. We need to hold agencies and their workers accountable because removal is always damaging to a family. Children have a fundamental right to be raised by their parents, even those who use medical cannabis.

Agencies need to make policies that keep up with the laws and research, and that focus on the legislative goals of the child welfare system. If a parent is given a recommendation to use cannabis, just like any other medicine, so long as the parent uses it per doctor’s orders, there is no basis for the State to intervene.

Intervention into family life on behalf of children must be guided by the legal basis for action and sound family-centered practice. Referral to court and removal of children from their families should only be done when it is determined that children cannot be kept safely in their own homes. Such actions should not be considered where there is no evidence that any minor “actually suffered any ill effects from his environment.” (Paul E., 39 Cal.App.4th 996, 1005.)

Responsible use of medical cannabis is no basis for jurisdiction any more than is the responsible use of any other prescription narcotic.

We as advocates for children must argue for immediate return, and judges should use their inherent authority to return children, because the best interests of the child require it.

Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

Jennifer Ani

Jennifer Ani, JD, CWLS is the principal of the Law Offices of Jennifer Ani, in San Rafael, CA. She has been an attorney in private practice for over 20 years. Since 2006, she has successfully represented parents in child welfare (CPS) cases throughout the State. Jennifer believes cannabis is significantly safer than CPS, and zealously defends the right of Qualified Patients to also be parents, and to be free from unnecessary State intervention. She is a member of the National Association of Counsel for Children and speaks regularly on child welfare and civil rights matters. In 2009, she was honored by the Legal Aid Society of California with the “Outstanding Family Attorney of the Year” award, and in 2010 was awarded the San Francisco Bar Association’s highest honor for Outstanding Family Law services. Ms. Ani received her B.A. from the University of California at Davis in 1989, and her J.D. from University of the Pacific, McGeorge School of Law in 1992. Jennifer lives with her husband, 10-year-old daughter, and rottweiler “Hero” in Marin County, CA.

  1. Having been a Child Welfare practitioner for nearly twenty years, both as a parent’s attorney and as a Social Services attorney, I have rarely (and I believe it is accurate to say, “never”) seen a case where children were removed where the use of Cannabis was the sole risk factor in the household. Drug use (or abuse) is one factor in the over-all analysis and all factors that affect a child must be taken into account before a conclusion can be made that a child is so at risk that they must be removed from their househol to assure their continued safety. Whether the drug used is Cannabis or a lawfully prescribed narcotic, one operative question is whether the child is adequately supervised while a parent is under the influence and whether the child’s other needs are met, not solely that a parent is under the influence. Another question is whether the parent is solely under the influence of Cannabis. Many of the cases I see on a daily basis involve polysubstance abuse, both prescribed and non-prescibed, and also including alcohol. Many of the parents involved have a tendency to seize any opportunity that might arise to ingest drugs or impairing substances, sometimes with the result that on a ten panel urine drug screen they will test positive not only for Cannabis but also Methamphetamine, Opiates, Benzodiazipines, and the occasional bath salt. Such drug “cocktails” seriously challenge the idea that the parent with such a quanity and variety of drugs in their system could appropriately supervise their child alone, raises questions about whether the chidlren are seeing such drug usage, and raise questions about the supervisory skills of any other parent or adult in the home, if present.

  2. Lumping together poly-substance abuse with medicinal cannabis use misses the point I tried to make above, i.e., that cannabis-only parents are indeed wrongfully subjected to the “system.” Medical cannabis use does not subject a child to risk of serious physical harm in the same way that poly-substance abuse does. Under current law, when a medical cannabis patient enters the dependency system, practitioners are essentially saddled with being both advocate and trier of fact. If advocates in this area believe that medical cannabis is a “ruse” then right results become less likely. Back room deals get made. Submissions are obtained without fully explaining the right trial, and other critical functions are ignored. Families are necessarily – and wrongfully – separated, often for months while “services” are provided to ameliorate the “problem” that led to dependency. This is my experienced based on my practice. That you have in over 20 years “never” seen this category of dependency parent underscores my concern about this issue.

    • I would not deny that the medical Cannabis-only parent presents unique circumstances within the context of risk assessment in dependency cases. In states where medical Cannabis is legal, it should change the risk analysis rather abruptly. But like the analysis in an alcohol related DWI/DUI case, its not really a question of the substance ingested, it is a question of impairment ( and within the context of a dependency case, proper suspervision). A report that a person is using Cannibis alone shouldn’t even constitute an investigatable report without more. So I agree, in those limited circumstances where a parent is lawfully using Cannabis and where there is no report of overt, debilitating impairment leading to a negative impact on a child, there is little basis (if any) for social services action. This begs the question, however: how many cases are there out there in which Cannabis use is the sole issue? Perhaps California differs from other states on this issue. I practice in a state where there is no lawful use of Cannabis and where polysubstance abuse is the overwhelming, almost exclusive rule and mono-substance use is the rare exception. At least with regard to the agency I represent, we would screen out a case of the type mentioned in your article (which likely leads to the result that we only see poly-substance case go to court). So in the end, such cases are not really problematic here as perhaps they might be in other states and do not result in situations where children are without appropriate cause abruptly thrust into foster care.

  3. Good read, Jen. I am glad you are doing this work! You are awesome!

  4. CPS abducted my son two weeks ago, right out of the hospital because their worker claimed I am not cognitively capable of caring for him. This accusation is based entirely on my own admission that I had a doctors recommendation and used CBDs prior to his birth. Neither the worker, nor the judge seem to understand that it is non psychoactive, plus my use was entirely before I was even aware my newborn son was to be born. The judge already told CPS to reunify us following a home check, and I myself asked the court for two drug tests to prove I quit out of fear since they seem to be determined to steal and keep my baby. When I talk of how this is effecting his development, or potential bonding issues the worker says oh he won’t remember it, she clearly knows nothing of child development. I get two supervised visits a week as long as they are holding my baby hostage. Nobody will address his potential milk allergy and lack of appetite. The foster mom showed me photos of my son on her cell phone laying alone on a dirty couch with nobody near him, and one of her 7 year old golden him without supporting his head!!! They do not allow me to send supplies, they use the cheapest most disgusting everything. He is in used clothes that are huge and they took him home in half a car seat that I bought without anybody checking for a base!! The base us still in my car! The judge tells CPS to do things but they ignore her and do what they want, and they get a month to play keep away with my newborn because that is when we go back to court. Last week the judge told CPS to give him to me by the end of this week, the worker already stated she would not, regardless of whether my home inspection was perfect!!! They are basically hurting my son by kidnapping him over non psychoactive CBD use prior to his birth!!!

    • Nathanial,
      I am so sorry this happened to you. Hopefully, by the time you read this, you will have your child home with you. You are exactly the type of client that my article describes. No other conduct incompatible with parenthood. I have to ask, are you the Dad, or are you the mom writing this under the name nathanial? I ask because, if you are the dad, it’s even MORE ridiculous that the dept. would be complaining about your use during the pregnancy. I assume your child did not register as tox positive at birth? And as far as I’m aware, if the court orders the agency to do something, they would be in contempt if they refused. I would have your court appointed attorney hold their feet to the fire immediately. Then look at relief provided by 42 USC 1983 actions. Good luck, I feel for you!

  5. I am a CPS investigator and have worked in CPS for almost twenty years. I have seen marijuana use be the reason for removal of children. It is time for the madness to stop. What is important is the parent’s ability to provide adequately all the needs of their children and to minimize the risk of potential harm.
    Sometimes we do more harm than good when we lack understanding.

  6. Leslie, Amen to that ! Thank you for your work.

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