[Eugene Volokh] Not all marijuana use is ‘chemical dependency’ that could lead to termination of parental rights

A marijuana plant in Denver. (Associated Press)

A trial court ordered that J.B.’s parental rights should be terminated because of his continuing marijuana use; Missouri law provides that parents can be stripped of their rights if they have a “chemical dependency.” But in In the Interest of K.M.A.-B., decided this month, the Missouri Court of Appeals held that not all marijuana use is “chemical dependency.” Here are the largely uncontested facts (some paragraph breaks added):

K.M.A.-B. was born on May 11, 2012. He had been exposed to methadone in utero and remained hospitalized for weeks after his birth. His mother admitted using heroin before and after the child’s birth, and she could not care for him. The child was taken into custody by the Children’s Division on July 2nd on allegations of abuse and neglect by his mother. Ultimately, the mother was incarcerated and her parental rights were terminated in the same judgment as Father’s, but are not at issue on appeal.

At first, the child’s biological father was unknown to the Division. Father was identified a few days later as 27-year old J.B. Father had never been married and had no other children. He was no longer in a relationship with the child’s mother; he said he broke off that relationship when he learned she had problems with prescription drugs and heroin. Father was employed full-time as a roofer and carpenter and remained gainfully employed throughout the proceedings. Father owned his own three-bedroom home in St. Charles County and maintained stable housing, which the Division found suitable with no concerns, throughout the proceedings. Father is a high school graduate, and has been on his own since he was seventeen.

Father indicated at the protective custody hearing on July 6th that he wanted custody of the child. The trial court granted Father supervised visitation, and he met with the child four times over the next month. Every visit was reported to be appropriate — Father held and fed the newborn, brought him clothes, toys and supplies and asked about his health and what else he needed. Other than the first visit, which was at the mother’s home, all of Father’s visits over the course of this case were conducted at the Division’s social service agency. Father failed to show up for one visit and had to cancel five others over the next two and half years. . . .

Father had six more visits with the child between the beginning of September and the end of November 2012. Again, those visits were deemed appropriate by the Division’s case managers: Father was attentive to the infant, held him, talked to him, consoled him calmly when he cried and played with him. Father brought toys, clothes and supplies, inquired about the child’s health and asked what else the child needed. . . .

Father completed a parenting assessment with a psychologist in December of 2012. Father told the psychologist he smoked marijuana “rarely,” only a couple of times a month, and denied being an addict. He told her that he converted to Rastafarianism after he came under scrutiny by the Division and that sacramental marijuana smoking is part of that religion, which is therefore protected under the Constitution. He stated that his marijuana use does not negatively impact his life and that his work and financial success reflected this.

The psychologist concluded that Father had no cognitive impairment or significant psychiatric problems. He had “unusual beliefs” and was immature and stubborn, as evidenced by his assertions regarding conversion to Rastafarianism. But he had also been independent and self-sufficient since he was a teen, successfully meeting all of his financial obligations without support. Father was not apt to admit faults and appeared to underreport any difficulties he had, including the frequency of his marijuana use. One screening test the psychologist used indicated a low probability of a substance disorder.

Under the DSM-IV in effect at the time, Father met the criteria for a “cannabis abuse” diagnosis. The doctor concluded that Father appeared “genuinely committed” to parenting his son and that his “parenting beliefs and expectations with regards to his child appeared to be generally appropriate and practical.” She recommended he get hands-on parenting assistance if the infant was returned to Father’s full custody. She also recommended continued drug screens: “Serial positive screens, particularly those that reflect high levels of THC, would indicate the need for a referral to drug treatment.” . . .

Father continued to use marijuana, continued to have positive drug tests for marijuana (or to refuse drug tests), but continued to visit with the child under supervision and “continued to play and inte