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The use of marijuana has become more mainstream over the years as the children of the 1960’s have grown up and had children of their own. The easy availability of the drug and relatively few side effects have made it a popular drug of choice even though it is illegal. The question that the New York state courts are called upon to answer is if there is just cause to punish parents who are occasional users of marijuana like they would any other illegal drug. The New York administration for child services maintains that it should. In 2012, they filed a petition to remove four children from their natural parents as derivatively abused children following the birth of the fourth child. The mother and newborn infant had tested positive for marijuana in the hospital the day that the baby was born. The Administration for child services determined that the child must suffer a birth injury as a result of the drug use.
The Administration for child services does not produce any evidence that the child or other children were abused in any way. The only evidence presented as a requirement to remove the children was that the mother and infant tested positive on a toxicology screening. The mother filed a request to have a summary judgment issued by the court on her behalf.
She contends that her children are well cared for, happy and healthy. She states that she does not have a drug problem and that she has used marijuana twice while she was pregnant. She produced evidence in the form of medical records from the hospital showing that there is no evidence that the positive toxicology test demonstrates that the baby is the subject of abuse. The medical records of the birth showed that the baby was born with an Apgar score of nine out of ten. He was of normal weight and gestation. He did contract an infection during his first few days of birth, but that was proven to not have any relationship to the positive marijuana test.
The mother also maintains that it is ridiculous to remove her children from a loving home where they are well cared for to place them into the foster care system because she smoked a joint. She contends that if the Administration for Child Services is going to start removing children from the homes of every parent who smokes a joint, then they will need to be prepared to house most of the children in the country. She also produced the home study that was done by the ACS investigator who came to her home. That report showed that the home was neat, clean, and filled the needs of all of the children. The children were well cared for and well fed. The children were interviewed. They stated that they had never seen their mother smoke marijuana and that they were loved and well cared for. It was the recommendation of the investigator that there was no need to remove any of the children from this loving home.
ACS contends that smoking marijuana while pregnant is endangering the infant and that makes a case for child neglect on that infant and a case for derivative neglect against the other children. For that reason, they believe that the children would be better placed in a home where the mother did not smoke an occasional marijuana cigarette. In response, the mother brought forth expert medical testimony that cigarettes and alcohol, both legal drugs in this country are more toxic to the human body than marijuana. She contends that she never smoked a joint, but ate the marijuana as a nerve tonic. She demonstrated through medical testimony that ingesting marijuana in that manner does not produce a stupor or intoxication like smoking it does. Because of this, she maintains that the ACS has not made a prima facie case for neglect. The court agreed. However, they were not prepared to put their stamp of approval on the use of marijuana so the woman was required to attend drug treatment.
At Stephen Bilkis & Associates with its marijuana Lawyers, have convenient offices throughout New York and Metropolitan area. Our birth injury lawyers can provide you with advice to guide you through difficult situations. Without a drug attorney, you could lose precious compensation to help your family.