Reversal of adjudication and disposition orders was required where the only evidence was that mother used medical marijuana during pregnancy to treat symptoms. At the time of the minor’s birth, both mother and the minor tested positive for marijuana. Mother denied smoking marijuana, but said she had researched her pregnancy symptoms of pain and swelling, and read articles which indicated that marijuana was the safest alternative to pills to treat her symptoms. She had a medical marijuana card, but did not inform her doctor that she was using the edibles. Mother stopped using them a few days after the baby’s birth, because the doctor told she could not breastfeed until she tested clean. Mother displayed no visible impairment from the substance use. The minor had no developmental concerns. Mother had housing issues, and agreed to participate in voluntary maintenance services. However, mother and the Department had a disagreement over mother moving into her grandmother’s house, and the Department considered mother to have declined voluntary services. The Department filed a petition alleging the positive toxicology at birth, and mother’s substance abuse. There were no other mental health or neglect allegations. The petition was sustained and the minors were released to mother, who was ordered to drug test. The appellate court found there was insufficient evidence of substance abuse to support the petition. The evidence at most showed that mother used edible marijuana while pregnant to address pregnancy symptoms after having researched it. She was never high while she used it, and stopped using after the birth. The Department presented no evidence of risk caused by prenatal use of marijuana edibles. Further, the record showed no risk of harm to the children. Even though an older toddler was under mother’s care while using the edibles, there was no evidence that he was neglected or at risk in her care. The appellate court reversed the jurisdictional findings, despite the fact that by the time the appeal was resolved, dependency jurisdiction had been dismissed. It did so because “if we fail to exercise our jurisdiction to resolve the jurisdictional appeal, the Department may feel free to continue to pursue jurisdiction in other cases where there is no evidence of substance abuse, and no evidence of substantial risk – only evidence that a child was born testing positive for marijuana, bolstered only by vague and unproven concerns.”

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B297416.PDF