Recreational marijuana use isn’t a defense to TPR, yet

Apparently I missed this in November: the Fourth DCA responded to a father’s defense that his marijuana use was only “recreational.”

The father never received a negative drug screen during the pendency of this case, he admitted at trial to continuing to smoke marijuana “recreationally,” and he failed to complete the required outpatient program before leaving the program altogether. In contrast to the parent who prevailed upon appeal in M.H. v. Department of Children and Families, the father in the instant case did not exhibit a “strong desire to overcome [his] addiction and parent [his child] ….” M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). Instead, the record reflects an unwillingness on behalf of the father to quit smoking marijuana, even knowing that his refusal to at least make an effort to quit was impeding his (otherwise inconsistent) efforts to regain custody of his child. In Florida, it is still illegal to possess marijuana, let alone smoke it. There is no differentiation in the law between being a marijuana addict and a “recreational” user, contrary to the father’s brief (“he only smokes marijuana recreationally”). Thus, there was no legal error with respect to DCF and the trial court relying upon the father’s failure to test negative for marijuana (and, for the most part, failure to test at all) as a factor (along with others, cited above) in finding that he did not substantially comply with his case plan, constituting evidence of continuing abuse, neglect, or abandonment supporting termination of parental rights.

J.E. v. Dep’t of Children & Families, 126 So. 3d 424, 428-29 (Fla. 4th DCA 2013).

It’s obvious that the tide of public opinion on marijuana use is turning, and the Fourth seems to give a hat tip to such again and again: earlier in the opinion it reminds us that it only needs to uphold the TPR on one ground (i.e., abandonment for this father), and notes that the father’s positive marijuana tests were “a factor…in finding that he did not substantially comply with his case plan.” Just a factor in an otherwise poor case plan performance. It would only take a few years, some law changes, and a couple of intervening cases to relegate this opinion to non-authority full of pre-legalization dicta.

Obviously some parents’ marijuana use may pose a risk of harm to their children–just like some parents’ use of alcohol or anything else may. Once a case plan is entered, though, the question of harm is almost completely tabled in favor of the much easier (for the system) standard of “compliance.” If he truly was a harmless recreational user, then I think that this father brought up his “recreational” defense at the wrong point in the proceedings. His argument is more properly a defense to a dependency based on marijuana use. No defense attorney in Florida should be allowing their client to consent to a “tested positive for marijuana” dependency absent some harm to the children. Mr. J.E. is a cautionary tale for how that may work out.

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