Billy Fisher doesn’t have to choose between his 16-month-old daughter and the medical marijuana he takes to manage his chronic back pain.
In a case that could have implications in custody cases for parents who are medical marijuana patients, a Spokane County Superior Court judge sided with Fisher and said the state can’t require him to take inpatient chemical dependency treatment as a condition of gaining custody of his young daughter.
“My daughter is coming home,” Fisher, a construction worker going through a contentious divorce with his estranged wife, said recently.
The Department of Social and Health Services is not conceding it did anything wrong in saying Fisher’s custody of his daughter should depend in part on getting drug treatment. But the state will not contest Judge Ellen Kalama Clark’s reversal of a previous order that sided with the agency and ordered him to have inpatient drug treatment before his daughter could live with him.
“The purpose of treatment is to help the person stop using the substance, and here Mr. Fisher has a valid reason and medical prescription for using marijuana,” Clark wrote. “He does not intend to stop using, and if he has no other method of dealing with his pain, stopping the use may result in other physical complications.”
For Fisher, who spent much of 2013 trying to gain custody of his daughter after the state removed her from his wife, Clark’s ruling confirms what he and medical marijuana advocates contended all along: He shouldn’t be forced to stop using medical marijuana that was recommended by a doctor and allows him to function at work and home.
State law says a person cannot be denied custody solely because he or she is a medical marijuana patient unless there are “written findings” that using the drug creates a long-term impairment that interferes with parenting.
But medical marijuana use is rarely the sole reason custody is denied, said Douglas Hiatt, an attorney who defends marijuana patients.
In Fisher’s case it wasn’t the sole reason Child Welfare Services balked at placing his daughter in his home. The agency had placed the baby in foster care after removing her from his wife’s custody.
Fisher and his wife separated before the baby was born; the child never lived with him and he had no experience caring for infants, the state said. He had a record that included time in prison in Idaho for burglary and was once addicted to methamphetamine.
DSHS recommended he undergo counseling, take parenting classes and complete 30 days of inpatient chemical dependency treatment for marijuana before his daughter could be placed in his care.
Fisher agreed to the counseling and the parenting classes but resisted the drug treatment, saying he needed marijuana for the pain. He’d once used opiate-based painkillers prescribed by a doctor that left him “like a zombie” and unable to work, he said. Going back on prescription painkillers would mean “I would not be able to be a parent to my child,” he said.
When the agency persisted and his public defender advised him to agree to the drug treatment as a way to get his daughter, Fisher fired his attorney and represented himself.
State officials provided Family Court Commissioner Valerie Jolicoeur with an assessment it commissioned from the Spokane Addiction Recovery Centers that said Fisher was addicted to marijuana. A chemical dependency expert Fisher hired said he was “dependent” on the drug to get through the day but wasn’t addicted.
The case became a cause célèbre for the state’s medical marijuana community, with protests at the Spokane County Courthouse and a Facebook campaign to “free” his daughter. State officials accused him of turning the case into “a fight to use medical marijuana,” and at one point Jolicoeur warned him the campaign was becoming “a terrible distraction.”
“You can focus on your daughter or you can focus on being mad at me or the department,” she warned him. Eventually she made inpatient treatment for marijuana use a condition of placing the child with Fisher.
A Hobson’s choice
Attorneys who handle cases involving medical marijuana patients said such an order is not unusual. Each case has unique complications, several said, but when medical marijuana enters the picture it is rarely given the same credence as prescription drug or even alcohol use.
Patients are confronted with a “Hobson’s choice” between a drug that provides them with relief and their child, said Aaron Pelley, a Seattle attorney. They often agree to an order to attend a treatment program.
To fight is “asking them to trade their child for justice,” Pelley said.
Mary Pat Treuthart, a Gonzaga Law School professor, said the rights of medical marijuana patients in states where the drug is legal are becoming a national issue. “I think there are some states that have more protections in the statutes than Washington,” she added.
Family courts operate under the standard of “the best interest of the child,” which state welfare workers and Jolicoeur all said they were using when ordering Fisher to a drug treatment program. Treuthart said courts may need to take a different look at medical marijuana patients.
“It should have to do with the ability to care for the child,” she said. “The question should be: Do they act responsibly with respect to the child?”
One parent will sometimes complain of medical marijuana use by the other in a custody fight, Hiatt said. Courts can be quick to deny custody if the patient is smoking in front of the child or leaving edible varieties of the drug out where the child could get to them.
Although Fisher used marijuana extracts daily and occasionally smoked a variety of the drug that was high in chemicals that provide additional pain relief, he said he never smoked around his daughter.
How big of a win unclear
Rather than lose a month of work while in a treatment center, Fisher appealed Jolicoeur’s order to the Superior Court. There Clark agreed with many of the conditions the commissioner had put on him for having his daughter placed in his home. But she rejected the inpatient drug treatment for marijuana.
Clark said DSHS never presented evidence on what level of medical marijuana use would hurt Fisher’s ability to be a parent. The assessment DSHS received from Spokane Addiction Recovery Centers was conducted by a trainee who didn’t testify at the hearing, she said, and the one-page report was “rather cryptic and not very helpful.” But she agreed with Jolicoeur that there is scientific basis for a distinction between dependency and addiction, so the report from Fisher’s expert, while longer, wasn’t helpful either.
“There is no evidence regarding impairment of parental abilities due to any marijuana use,” Clark said. Therefore, Fisher didn’t need drug treatment and the state should begin scheduling visits to ease the placement with her father, the judge ruled.
How much Fisher’s case will help other medical marijuana patients is unclear, Hiatt said. Their lawyers can point to it, but without a ruling by an appeals court, Clark’s ruling isn’t binding on other judges.
Fisher has no reason to appeal, and Hiatt said he doubted the state would appeal for fear of getting a ruling the agency doesn’t want.
In a prepared statement, the attorney general’s office said it would not discuss the case. “A decision not to file an appeal can be based on any one of a wide variety of factors. One such decision does not necessarily indicate a change of policy.”
In a written statement, Deanna Bedell, intake and substance abuse program manager for DSHS Children’s Administration, said the agency is not changing policies or practices on medical marijuana and will continue to look at “the effect on the child and the circumstances of any specific allegation.”
Hiatt said things could improve for patients as people get more knowledgeable about medical marijuana. But one thing is sure, he added: “It’s going to continue to come up.”
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