Brianna and her friend were hanging out, getting ready for a concert, when the Los Angeles Police Department unexpectedly showed up at her door. At the time the police arrived, Brianna had just smoked some pot outside while her younger son was in the house with the nanny. She and her husband, Ryan — their names have been changed here to preserve their anonymity — both have medical marijuana licenses and run Los Angeles–based cannabis businesses.

In addition to having marijuana in the house, the couple had a can of butane, which can be used to cook hash oil but also has many other common applications, and some ovens that they say were formerly used to make cannabis concentrates but were out of use. According to Brianna and Ryan, the police thought they were illegally manufacturing cannabis products in their home. “We said please don’t arrest us in front of our kids,” Brianna recalls. “And they did right in front of our children, they didn’t care.”

The incident led to the couple's many visits to the Children's Court in Monterey Park. The county placed their sons, ages 2 and 11, in the custody of Brianna’s parents three months after the initial arrest, because the judge determined the couple's levels of THC, the psychoactive component in cannabis, had not been reduced as ordered by the court. Ryan had cut back his marijuana use but didn’t quit completely, he says, because it helps him manage his familial tremors, a type of involuntary shaking. After seven months of court-ordered drug tests, Marijuana Anonymous meetings, parenting classes and therapy, the couple regained custody of their sons.

“In my 20-year career, I have seen parents lose their children scores and scores of times where the only allegation was cannabis use or abuse,” says Pamela Ray Tripp, a Los Angeles County child-welfare legal specialist.

Scores of families in Los Angeles County have been subject to similarly strict scrutiny over their relationship with marijuana. California’s medical marijuana law protects patients and their caregivers from prosecution by state law enforcement, but it doesn't protect against civil penalties. This means that until Proposition 64, the recent bill that legalized recreational marijuana for Californians over the age of 21, there was no state legislation explicitly protecting parents' medical use of marijuana.

Now, for the first time, attorneys defending families against cannabis use can use Proposition 64 to help bolster their arguments. The law says there must be reason beyond a person’s status as a medical marijuana patient to take away his or her children. But child-welfare attorneys are skeptical as to how much this will help.

“Change doesn’t really come in the child-welfare community until there’s public awareness and education,” Tripp says.

Despite Proposition 64, attorneys must continue to address all concerns raised by Department of Children and Family Services social workers about potential threats to a child’s safety. Social workers determine whether to file an investigation into a family when it's reported to the department’s hotline, and drug use alone, even if it’s illicit, is not supposed to be enough to prove a child is at risk.

Jennifer Ani, a California family-law attorney who helped write Proposition 64, says that social workers often don’t understand that sole cannabis use can’t pose a significant threat to a family. Ani references numerous cases she’s worked on in which a social worker has used unrealistic hypotheticals to argue that there’s a relationship between a parent’s cannabis use and risk to his or her children. “I had one social worker tell me that the father was going to get high and drop the infant,” she said.

Armand Montiel, a spokesman at the Los Angeles County Department of Children and Family Services, says he’s been hearing the accusation that bias determines cases throughout his 27-year career with the department, but he believes the judicial process has checks for this. He also emphasizes, in agreement with the defense lawyers, that cannabis use on its own is not a reason to interfere in a family’s life. “If all you have is the subjectivity of the social worker, the child will not remain outside the home. We’re very careful,” he says.

Tripp, among four other child-welfare legal experts who spoke to L.A. Weekly, disagrees. She says Brianna and Ryan’s case was indicative of the wide variety of responses of CDFS to parents who use cannabis. “I have another case that has almost an identical scenario and we got the kid back in a couple days,” Tripp says. “To me, that’s very subjective, that the same set of facts can lead to very different results.”

LA Weekly