A guest article from Allison Stein
(As !st reported on The Kush Kronicles)
Arizona Norml gets many heartbreaking calls in regard to patient’s rights against DCS. One would think that in an already crowded system, that the department would not waste their resources on medical cannabis patients. Nevertheless, time and time again, this has proven not to be the case.
Sadly, the department hides behind the term for “neglect” ARS 8-201 25
ARS 8-201 25. “Neglect” or “neglected” means: (a) The inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare, except if the inability of a parent, guardian or custodian to provide services to meet the needs of a child with a disability or chronic illness is solely the result of the unavailability of reasonable services. (b) Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found, or equipment is possessed by any person for the purposes of manufacturing a dangerous drug as defined in section 13-3401. (c) A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in section 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in section 13-3401 beyond the requirements prescribed pursuant to section 13-3620, subsection E.
An additional shield for DCS was added in 2016 Rep. Kelly Townsend, R-Mesa, attempted to ban pregnant women from accessing the state’s medical-marijuana program. House Bill 2061 did not ban pregnant women, so much as it did STRONGLY warn, about 3 to four times the dangers of medical cannabis consumption while pregnant.
The warning reads as follows:
“WARNING: THERE MAY BE POTENTIAL DANGERS TO FETUSES CAUSED BY SMOKING OR INGESTING MARIJUANA WHILE PREGNANT OR TO INFANTS WHILE BREASTFEEDING.”
“WARNING: USE OF MARIJUANA DURING PREGNANCY MAY RESULT IN A RISK BEING REPORTED TO THE DEPARTMENT OF CHILD SAFETY DURING PREGNANCY OR AT BIRTH OF THE CHILD BY PERSONS WHO ARE REQUIRED TO REPORT.”
However, the AMMA has a shield as well and there is a little known case working its way through the appeals’ process, right now, that might force DCS to take the AMMA into account.
“(ARS § 36-2813(D)) No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.”
Even so, this did not happen to the mother in this case against her previous employer. Mother in this case was at one point a case investigator for the department of child safety. Mother used medical cannabis and other prescribed medication while pregnant. Many of the medications such as Celera and buphur are known to have side effects on unborn babies. Regardless of those medications and side effects, the department decided to enter a finding of “neglect” to the Central Registry.
The Central Registry
The Central Registry is a confidential list of people with reports of child endangerment. The purpose of this list is to catalog people who are considered a threat to children and prevent those individuals from becoming employed as a teacher, daycare staff, or adopting a child in the future.
Due to the Department of Child Safety (DCS) not taking into account the AMMA when entering its finding of neglect, mother armed with attorney Sonia Martinez appealed against the Departments finding to an Administrative Court.
Late February Administrative Court Judge Diane Mihalsky ruled that:
“Although AMMA did not change the definition of ‘neglect’ in the Department’s statutes, it changed parents’ and their treating healthcare professionals’ healthcare options for alleviating the adverse maternal effects of pregnancy to make a healthy baby’s birth more likely.”
IT IS FURTHER ORDERED pursuant to A.R.S.8-811(N)(1) that the Department shall amend its finding of neglect to make it unsubstantiated and shall not enter the proposed finding of neglect against Appellant into the Central Registry.
For the first time in Arizona’s history, DCS can no longer ignore the AMMA. Judge Mihalsky finally gave the medical marijuana community in Arizona some clarity, as to how the two laws can co exist together. However, of course, the Department meant to protect children does not like being told what to do or how to operate.
And like any sore loser would do by taking the ball and going home, the State Director of DCS Mike Faust, used his authority to undermine the Administrative Law Judges verdict by rejecting, and modifying the order to (of course) suit DCS’s needs. As one would expect those needs are NOT the legal needs of the patient.
Have no fear that by the time this matter is over, there will be a clear definition of the terms of “neglect” when medical cannabis patients’ rights as parents are involved. Both the mother and her attorney are willing to take this issue to the Supreme court if needed. Apparently, it’s the only thing that can be done that will force DCS to treat our medication as medication.
For A Full report on the finding of this case please check out the original particle on The Kush Kronicles.com
—Allison Stein is the author and publisher of AZ’s Kush Kronicles