The Michigan Attorney General recently addressed the application of the Michigan Medical Marijuana Act to child protective proceedings. The opinion was released on May 10, 2013.
First, the Attorney General stated that primary caregivers and registered patients may invoke immunity or protection under sections 4 (a) and (b) of the MMMA in a child protective proceeding. However, he noted that this only applies in cases of properly registered individuals in possession of registration cards and whose medical use is in accordance with the MMMA. However, he also asserted that this does not afford absolute immunity. Section 4(c) states an individual cannot be denied visitation or custody for acting in accordance with the MMMA unless his or her behavior creates an unreasonable danger to the child that can be clearly articulated and substantiated.
Furthermore, the MMMA does not define “unreasonable danger” or “articulated and substantiated.” He suggested that in order to determine whether an unreasonable danger exists necessitates a fact-specific inquiry into the circumstances of a case. Currently, courts apply a similar analysis under the Child Protection Law. Additionally, he expressed that under the MMMA’s terms, medical use of marijuana does not present an unreasonable danger to a child. However, he also pointed out that if the marijuana use affects the parent’s ability to sufficiently care for a child, or if for example, the use adversely affects an asthmatic child, these circumstances could create an unreasonable danger.
For the “articulated and substantiated” piece, he stated that when arguing that a parent’s medical use creates an unreasonable danger to a child, that this must be clearly expressed and supported with evidence. So at the adjudicative phase, this must be supported by a preponderance of the evidence. At the dispositional phase, this needs to be supported by clear and convincing evidence. If the use is found to create an unreasonable danger to the child, then the registered patient or primary caregiver will lose the afforded immunity. In turn, the marijuana use could be a basis to either restrict or deny custody or visitation.
Regarding the section 8 affirmative defense, he stated that since child protective proceedings are civil actions, and not criminal prosecutions, that this is inapplicable. Moreover, he stressed that in order to invoke protections under sections 4 (a) and (b) in a child protective proceeding, it is required that a primary caregiver or patient be issued and have a valid registry identification card.
Additionally, he stated the MMMA does not authorize or allow courts to determine in a child protective proceeding if an individual is a qualifying patient. However, courts could order a medical examination, retrieve medical records, and review other evidence to decide if the use is for treating or alleviating the debilitating condition or related symptoms. If the usage is found to not be in accordance with the MMMA, then the person cannot invoke the protections under section 4(a).
It is important to remember that Michigan Attorney General Opinions are not law for parents. The acts of the legislature and the courts in regard to the Michigan Medical Marijuana are law and define acceptable behavior. Nonetheless, this opinion will have a direct bearing on the actions of CPS workers since the Attorney General has the authority to issue opinions which govern the other members of the executive branch of of state government.
Medical Marijuana users who are parents should carefully consider the affect of their marijuana use on their children so as not to invite court intervention. Once in the court system, a judge in a criminal proceeding or a neglect petition case has considerable authority to set conditions which are stricter than those imposed by law. The trial lawyers at Kronzek and Cronkright, PLLC have considerable experience with the MMMA and can assist parents needing to hire an attorney.