Mother’s Visitation Cannot Be Suspended Solely On Failed Drug Screen

The trial court in this child-protective case improperly conditioned a mother’s ability to visit her child on her testing negative for marijuana without there first being evidence and a finding that the visits would be harmful to the child, the Michigan Court of Appeals has ruled for the first time.

The respondent-mother in In re L Ott, Minor (Docket No. 362073) has a medical-marijuana registry card. The St. Joseph County Circuit Court issued an order suspending her parenting time with her child, LO, whenever she tested positive for Tetrahydrocannabinol (THC) and required three consecutive clean drug screens for her to resume visitations.

The respondent appealed, arguing the trial court’s order was invalid because Michigan law does not permit a court to deny a parent visitation with a child in foster care merely based on a positive drug screen for marijuana, unless there is evidence and a finding that the marijuana use poses a risk of physical or mental harm to the child. She claimed the evidence did not show that her marijuana use created an unreasonable danger to LO. Rather, she asserted the evidence showed that when she did exercise her parenting time, things went well, her conduct was exemplary and there was no threat of harm to LO.

The Court of Appeals, in a published and binding opinion, reversed the trial court’s decision.

“[W]e conclude that MCL 712A.13a(13), MCL 712A.18(1)(p), MCL 333.26424(d), and MCL 333.27955(3) needed to be taken into consideration before respondent’s parenting time was suspended,” Judge Jane E. Markey wrote. “An automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under these statutory provisions is invalid.”

Judge Elizabeth L. Gleicher and Judge Michelle M. Rick joined the decision.

Appellate Arguments

The respondent presented several arguments on appeal.

First, she claimed Michigan law - specifically MCL 712A.18f(3)(e), MCL 712A.13a(13) and MCR 3.965(C)(7)(a) - provides that a parent who has lost temporary custody of his or her child to the foster care system has the right to parenting time unless a court finds that visitation would be harmful to the child.

The respondent also asserted the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., and specifically MCL 333.26424(d), along with MCL 333.27955(3), a provision in the Michigan Regulation and Taxation of Marijuana Act (MRTMA), provide that visitation cannot be denied on the basis of marijuana use unless the behavior creates an unreasonable danger to a child that can be articulated and substantiated.

Here, the respondent maintained there was no evidence or finding that her marijuana use posed a risk of harm or an unreasonable danger to LO. As a result, the respondent contended, the trial court erred by denying her parenting time in response to her positive drug screens and by ordering that she could only resume visitations following three consecutive clean drug screens.

She claimed it was improper to connect parenting time to her marijuana use absent a determination that the marijuana use created a danger to the child’s well-being.

“In sum,” the Court of Appeal observed, “respondent asserts that the court’s actions in automatically suspending parenting time without any evidence of potential harm to LO plainly violated Michigan law.”

Automatic Suspension ‘Invalid’

The Court of Appeals began its analysis by examining the respondent’s arguments under MCL 712A.18f(3)(e), MCL 712A.13a(13) and MCR 3.965(C)(7)(a).

“In general, MCR 3.965 concerns preliminary hearings, and Subrule (C) addresses pretrial placement,” the Court of Appeals wrote. “In In re Laster, 303 Mich App 485 … (2013), this Court held that MCR 3.965(C)(7)(a) ‘only govern[s] parenting time from the preliminary hearing to adjudication’ and is not ‘applicable once adjudication occurs[.]’ In this case, we are focused on post-adjudication dispositional orders regarding marijuana use and parenting time; consequently, MCR 3.965(C)(7)(a) has no relevance to this appeal.”

The Court of Appeals then turned to MCL 712A.13a(13), which is tied to custody and placement orders after removal. That statute says: “If a juvenile is removed from the parent’s custody at any time, the court shall permit the juvenile’s parent to have regular and frequent parenting time with the juvenile. Parenting time between the juvenile and his or her parent must not be less than 1 time every 7 days unless the court determines either that exigent circumstances require less frequent parenting time or that parenting time, even if supervised, may be harmful to the juvenile’s life, physical health, or mental well-being. …”

According to the Court of Appeals, the Laster panel held that MCL 712A.13a(13), like MCR 3.965(C)(7)(a), “only govern[s] parenting time from the preliminary hearing to adjudication” and is not “applicable once adjudication occurs[.]” Meanwhile, the removal of a child from the custody of a parent can occur following adjudication and the court’s exercise of jurisdiction. “Therefore, with the addition of the ‘at any time’ language, the Legislature plainly intended for MCL 712A.13a(13) to apply before and after adjudication. Accordingly, even after adjudication takes place, a parent is entitled to parenting time with a removed child unless it ‘may be harmful to the juvenile’s life, physical health, or mental well-being.’ … We hold that the interpretation of MCL 712A.13a(13) enunciated in Laster no longer governs in light of the legislative amendment of the statutory provision.”

Next, the Court of Appeals examined MCL712A.18f(3)(e), which provides that a case service plan must include, except as otherwise provided in the statute, “a schedule for regular and frequent parenting time between the child and his or her parent[,]” but not when “parenting time, even if supervised, would be harmful to the child as determined by the court. …” The appeals court noted that Laster, however, limited the reach of MCL 712A.18f(3)(e) by finding that, in the absence of a court rule or statute, “the issue of the amount, if any, and conditions of parenting time following adjudication and before the filing of a petition to terminate parental rights is left to the sound discretion of the trial court and is to be decided in the best interests of the child. No finding of harm is required, although such a finding is usually implicit in the court’s decision.”

The Laster panel’s interpretation of MCL 712A.18f(3)(e) “does not support respondent’s position in this case,” the Court of Appeal said. The Laster panel “observed that ‘[t]here is … no court rule governing parenting time between adjudication and the filing of a termination petition.’ We have now ruled that MCL 712A.13a(13) applies post-adjudication given the Legislature’s amendment of that provision. Moreover, in 2016, after Laster was decided, the Legislature added subsection (1)(n) to MCL 712A.18. … And 712A.18(1)(n) was subsequently renumbered as MCL 712A.18(1)(p).” MCL 712A.18(1)(p) provides: “(1) … The court may also enter any of the following orders of disposition that are appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained: … (p) In a proceeding under section 2(b) or (c) of this chapter, if a juvenile is removed from the parent’s custody at any time, the court shall permit the juvenile’s parent to have regular and frequent parenting time with the juvenile. Parenting time between the juvenile and his or her parent shall not be less than 1 time every 7 days unless the court determines either that exigent circumstances require less frequent parenting time or that parenting time, even if supervised, may be harmful to the juvenile’s life, physical health, or mental well-being. If the court determines that parenting time, even if supervised, may be harmful to the juvenile’s life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists. …”

By enacting 2016 PA 191, “the Legislature not only added the above-quoted language to MCL 712A.18, as tweaked by some subsequent minor amendments, but it also amended MCL 712A.13a(13) using similar language …,” the Court of Appeals explained. “In our view, this makes it abundantly clear that even following adjudication, a parent has a statutory right to parenting time unless it may be harmful to the child’s life, physical health, or mental well-being.”

The Court of Appeals then turned to the MMMA argument - and MCL 333.26424(d) in particular. That statute says: “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” As for the respondent’s argument under the MRTMA, MCL 333.27955(3) similarly says that “[a] person shall not be denied custody of or visitation with a minor for conduct that is permitted by this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated,” the appeals court observed.

“These provisions, MCL 333.26424(d) and MCL 333.27955(3), plainly apply to domestic relations actions,” the Court of Appeals said. “And this Court has recognized the application of MCL 333.26424(d) in the context of child protective proceedings. … We see no reason why the MRTMA would not also apply to child protective proceedings. The legal concept of ‘visitation’ with a ‘minor’ certainly has meaning, relevance, and application in a child protective proceeding, as well as in a domestic relations action.”

In conclusion, the Court of Appeals said the trial court should have taken MCL 712A.13a(13), MCL 712A.18(1)(p), MCL 333.26424(d) and MCL 333.27955(3) into consideration before suspending the respondent’s parenting time.

“An automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under these statutory provisions is invalid,” the Court of Appeals wrote. “Respondent’s use of marijuana did not justify the denial of her parenting time with LO unless the court determined that as a result of her marijuana use, parenting time, even if supervised, may have been harmful to LO’s life, physical health, or mental well-being. … Such a determination was not made in this case at any point in time; therefore, the orders suspending respondent’s parenting time for THC-positive drug screens and requiring three consecutive negative drug screens before parenting time could resume were patently invalid.”

Moreover, “for purposes of the MMMA and the MRTMA, respondent’s use of marijuana did not justify the denial of her parenting time with LO unless the court determined that she did not act in accordance with the MMMA or the MRTMA, or unless the court determined that as a result of her marijuana use, it created an unreasonable danger to LO that was clearly articulated and substantiated,” the Court of Appeals held. “This analysis was not undertaken in the lower court.”

Therefore, “we hold that it is necessary to reverse and remand the case for compliance with MCL 712A.13a(13), MCL 712A.18(1)(p), MCL 333.26424(d) and MCL 333.27955(3),” the Court of Appeals concluded.