Parents with children in foster care cannot be denied visitation based only on positive drug tests, unless the court determines that the drug use poses a risk of harm to the child, a Michigan appeals court ruled last week.
In rendering the opinion, the court overturned a case in which a mother — who had a medical marijuana card and tested positive for the drug on multiple occasions — was prevented from having visitation with her son unless she had three consecutive clean drug tests.
This requirement was out of step with Michigan’s laws governing medical and recreational marijuana use, the court ruled. Both laws explicitly state that marijuana used in accordance with the law cannot be used as grounds to deny visitation.
In the case overturned by the appellate court decision the mother’s caseworker testified that she saw no signs that marijuana use was impairing the mother’s parenting abilities. She was appropriate and “positive” with her child during supervised visits, and her home safe and stocked with food.
While the case in question, In re Ott, dealt only with marijuana, the judges added in a footnote that their judgment applies regardless of what drug a parent tests positive for. As long as there’s no evidence that their drug use puts the child in danger, it cannot be grounds for suspending visitation.
The precedent set by this case could have broad impact in Michigan’s family court system, where between 31% and 40% of foster care cases include concerns about a parent’s drug or alcohol abuse, according to data from the federal government. The Ott decision recognizes both the importance of visitation on the reunification process and the often nonlinear nature of substance abuse recovery.
The court also noted that visitation rights could not be denied due to missed drug tests, “which are ordinarily treated as positive screens.” This precedent will also likely be a significant factor in many child welfare cases, as parents, including the mother in Ott, often struggle to comply with random drug testing orders due to lack of transportation or being unable to take off work to go get tested.
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