A Cleveland couple is fighting to regain custody of their newborn daughter following a magistrate's order to have her taken from her parents because the mother was found to have drunk marijuana-based tea to ease her labor pains.
Despite county family services officials recommending that the child remain at home with her parents, Magistrate Eleanore Hilow had baby Nova removed from Hollie Sanford and her husband and placed in the home of one of their relatives.
Sanford used the tea to treat her symptoms because she understood that doing so would be safer than using prescription pain medication. She said she began researching for natural remedies to alleviate debilitating morning sickness and sciatic nerve pain while pregnant. She had decided to drink tea rather than smoke so that Nova wouldn't be exposed to carbon monoxide.
"We did the research and THC, the psychoactive element, doesn't reach the baby after it's metabolized through my body," Sanford said, "So it's not like the baby is stoned like people might think."
After Sanford and Nova tested positive for a non-psychoactive bi-product of marijuana following the baby's hospital birth in late September, officials from Cuyahoga County Children and Family Services had asked the court to grant them "protective supervision" so that a caseworker could monitor the family. Sanford had agreed not to use marijuana, and social workers had determined that the baby was not in danger at home.
"There is no need to remove this child from her parents' in order to protect her," the prosecution said a motion filed in court last month. "At this time, removal would only serve to disrupt the bond the child would develop with her parents during this important period in her life.... Rather than protecting the child, removal may be more harmful to her both in the present and in the future."
But Hilow disagreed in court, censuring Sanford and punishing her by taking away her child.
Lawyers for the couple and county family services say there is no legal basis for the removal of the baby, which requires the court prove that she faces "immediate or threatened physical or emotional harm." Medical marijuana experts note there there is also no scientific basis for Hilow's decision. The hospital tested Nova's first stool and found metabolites of cannabis, which remains in the system after marijuana use. Despite requesting to monitor the family, family services said the birth was a "normal delivery" and there "no evidence the child was exposed to THC or suffered from withdrawal," according to Fox8.
This is not the magistrate's first controversial custody decision. The Cleveland Plain Dealer reports that she has often moved unilaterally to remove children from parental custody with insufficient evidence. In those cases, as in Sanford's, families appeal to Juvenile Court Judge Thomas O'Malley to overturn the order.
"We are disappointed that this jurist regularly makes rulings disregarding the agency's professional opinion and the opinions of other professionals in the courtroom, include guardians ad litem and other child welfare experts," Children and Family Services spokeswoman Mary Louise Madigan told the Plain Dealer. "We will continue to work with this family, which is committed to reunification."
The case illustrates how the fuzzy legal status of medical marijuana can unexpectedly imperil parental custody of children.
In April, a mother and medical cannabis activist in Kansas lost custody of her 11-year-old son after the boy reportedly defended the use of medical marijuana during a drug education class at his school.
Shona Banda, a motivational speaker and author, also faced drug and child endangerment charges after police searched her home and found cannabis products and paraphernalia. She was ultimately charged with three felonies and two misdemeanors regarding marijuana use. She faces a preliminary hearing on November 16.
Chris Lindsey, legislative analyst for the Marijuana Policy Project, told VICE News that Banda's case is a "great example of what happens when there is no broader federal law governing medical marijuana use."
"Different states have wildly different approaches," he said. "In Colorado, this case wouldn't have any taken up anyone's time, yet in Kansas it's become a very big issue."
"Apart from the shock value, it's troubling that from what a child says at school can lead to authorities having enough probable cause to issue a search warrant," he added.
On Tuesday, Ohio residents will be voting on a ballot initiative that would legalize weed for both recreational and medicinal users across the state. Recreational marijuana is currently legal in four states and the District of Columbia, while 23 states and DC have some form of medical marijuana law on the books.
"I hope if marijuana is legalized people will open their eyes a little more," Sanford told the Plain Dealer.
In the meantime, Nova will remain in the care of Sanford's cousin. She receives daily visits from her mother and father to help build a parental bond.
"It's very hard. We're just trying to be optimistic and count our blessings; that's what keeps us going," Sanford told Fox8. "I do not have a dependency issue. I am not addicted to marijuana, as has been clearly shown with my clean drug tests."
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