Parents’ Use of Cannabis for Autism Treatment Leads to Legal Battle With Child Protective Services

Findlaw

By Vaidehi Mehta, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last updated on February 26, 2024

A recent legal saga paints the difficult battle of two potentially well-intentioned sides: parents and child welfare agencies. The parents of an autistic child were recently in hot water when her teacher and social workers found out they were treating her with medical marijuana. After almost losing custody of their children as a result, they sued the government for putting them through it all. FindLaw recaps the litigation even as it continues.

K’s Medical Marijuana Journey

Rachel Scanlon and Steve Sawyer are a couple who have an autistic daughter that we’ll refer to as “K.” (family courts also use initials or pseudonyms for minors to preserve their anonymity). When she was a little over two years old, K. was diagnosed with autism. She began showing signs of aggression towards others at age five, and by age seven, that aggression turned on herself. These behaviors caused K. to be kicked out of her private school around the time she was nine, in 2017.

When her parents took her to a pediatrician, she was treated with an ADHD medication that did not seem to work. Scanlon soon started using marijuana to treat K.’s disorder and attempted to make appointments with specialists in pediatric medical marijuana. One leading expert, Dr. Goldstein, had treated over 1,000 autistic and epileptic kids. However, she had a year-long wait list, meaning she was not able to help K. immediately.

Finally, through an organization called CannaKids, Scanlon was able to consult a doctor who recommended starting K. on the lowest possible dose of marijuana and watch for side effects. She ordered THC from CannaKids, and worked with their dosing specialist, who recommended starting K. on 0.2 mL for the first week. K.’s mother noted that the difference in her daughter’s behavior “was like night and day,” with decreased aggression and tantrums and better behavior and compliance in school. After slightly increasing the dosage on the specialist’s recommendation, Scanlon noted “even better” progress.

K.’s teacher at school thought K. was better behaved as well as “more talkative, compliant,” and “calm.” Her teacher knew that K. was on some new medication, though she didn’t initially know it was medical marijuana. She told K.’s mother that the new medicine was “doing good” and that she could “work with her better.” The teacher later learned that K.’s medication was marijuana-based.

Child Services Gets Involved

In September of 2017, the DCFS child welfare hotline received two separate anonymous reports that K. had shown up to school “lethargic, with glazed eyes, and apparently under the influence of marijuana.” A social worker was assigned to investigate and soon went to K.’s school to speak with her teacher.

DCFS’s warrant to remove both K. and her five-year-old sibling was approved by a local court. The children were picked up by DCFS and sent to separate foster homes that weren’t experienced in dealing with children with autism. They spent the next five days in foster care. During that time, the social worker was unsuccessful in trying to reach Dr. Goldstein.

However, by the time the court held a hearing on the girls’ case in October, Dr. Goldstein had been contacted, attended the hearing, and agreed to be involved in K.’s treatment. The court released the girls back into their parents’ custody and dismissed DCFS’s petition with prejudice, in the “Interest of Justice.”

But that was not the end of the story. Scanlon and her husband Sawyer felt wronged by the system and wanted justice. With their children back in their custody, they filed a separate lawsuit against DCFS, the social worker, her supervisor, and a third social worker. The case started in federal district court and was eventually appealed by the parents to the Ninth Circuit.

Parents Sue Government

The parents sued under various legal theories as well as Constitutional claims under the First, Fourth, and Fourteenth Amendments. One of their legal theories was based on how the social worker handled the interview of K at her school. The NinthCircuit went back and forth on whether there was a constitutional violation in the fact that the social worker had interviewed K. without her parents’ consent, and concluded that the law on this had not been clearly established. As such, the court ruled that the social worker was entitled to qualified immunity for how she handled the interview.

K.’s parents also accused DSFC of procuring the children’s removal by a fraudulent or misleading warrant via “judicial deception.” This may be a legal phrase that’s new to your ears. It refers to situations where there is an intentional act of misleading a court or a judge. In such a case, the person working for the government is guilty if they omit facts required to prevent technically true statements in the affidavit from being misleading. By not reporting the whole story, the government worker can manipulate the inferences the judge will draw about whether there is probable cause to issue the warrant. Parents have the legal right to be free from judicial deception in child custody proceedings and removal orders. Engaging in judicial deception can have serious consequences, including sanctions, fines, or criminal charges for perjury or contempt of court.

Here, child services is accused of failing to disclose pertinent information or evidence that is required to be shared under the rules of the court. The social worker had asserted that K.’s parents had not obtained medical supervision. Since California has legalized medical marijuana (including for children) when recommended by a doctor, the fact that K. was receiving marijuana under medical supervision could not be the basis for removal. Thus, the jury concluded that the judge was “judicially deceived” by the misleading way that the social worker and DCFS presented their evidence.

What Next?

In short, the Ninth Circuit sent some questions back to the trial court to rehash. But the upshot is that the parents were effectively given back their day in court; many of the claims that the lower court had dismissed in favor of the government agency and workers are now getting considered on their merits based on the Ninth Circuit saying that the parents have real claims. So, while the trial will begin anew, K.’s parents are still hoping to get the justice they were looking for.