Medical Marihuana Meets Child Welfare and Termination of Parental Rights | Speaker Law
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Medical Marihuana Meets Child Welfare and Termination of Parental Rights

Posted on Tuesday, May 8, 2018

In the matter of In re B. Hadd, Minor, No: 337095337097, the termination of parental rights of both parents by the lower court was upheld by the Michigan Court of Appeals (MCOA). The application of the MCOA order is being held in abeyance pursuant to the order of the Michigan Supreme Court, SC: 156604 because the Court believes the decision in the case of In re Hill, Minors (No.155152) presently before it may resolve a similar issue raised in the Hadd application for leave to appeal.

Facts: The trial court found that grounds for terminating respondents’ parental rights were established under MCL 712A.19b(3)(c)(i), (c)(ii), (g), (j), and (l). The respondent-mother had not addressed her substance abuse issues during the 24 months the child was under the court’s jurisdiction; nor did she seek help for her mental health issues. The evidence provided, concluded the MCOA, was sufficient to find the grounds for terminating her rights under Sec. 19b(3)(g) and (j).

The respondent-father argued that by terminating his parental rights to his child, the trial court violated his rights under the Michigan Medical Marihuana Act (MMMA), MCL 333.26371 et seq. Citing MCL 333.26424(a), he contends that he could not be denied custody or have his parental rights terminated because of his continued medical use of marijuana.

Medical Marihuana Use and Parental Rights

 A parent’s right to custody or visitation when the parent holds a valid medical-marijuana card is addressed in MCL 333.26424(d), which provides:

“A person shall not be denied custody or visitation of a minor for acting, in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

The MCOA rejected the father’s reliance on the statute for two reasons:

  1. He is not currently entitled to claim protection under the MMMA because his medical-marijuana registry card expired in February 2016. Respondent-father never presented any evidence that his card was renewed or that he continued to have a medical need for marijuana.
  2. Second, the record does not indicate that the trial court denied respondent-father custody or terminated his parental rights because he obtained a medical-marijuana card or because of his actions in accordance with the MMMA.

According to the trial court, his rights were terminated because of his failure to cooperate with the terms of his treatment plan, failure to explore alternative treatment options as recommended in his psychological evaluation and his failure to present evidence of his condition justifying a medical need for marijuana or that marijuana was a recommended treatment for it.

The MCOA reviewed the best interests’ standard and found that the termination of both parents’ rights was in the best interests of the child. Both parents were non-compliant with treatment plans. The father contends that apart from his marijuana use, there was no evidence of neglect—noting that his supervised visits were appropriate. However, he never made the effort to progress beyond supervised visitation.

The matter is now before the Supreme Court awaiting the decision in In re Hill, Minors, which involves the issue of whether the collateral attack rule bars a challenge to the lower court initial exercise of jurisdiction. The same issue was raised by the father in Hadd arguing that the trial court violated MCR 3.971(B)(4) by failing to advise him at the time of his plea that the plea could be used as evidence in a later proceeding to terminate his parental rights.

We will keep you advised of the Supreme Court’s decision on that issue.

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