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Family Law - Child Endangerment

Jan. 13, 2022

Family Law is an extremely broad category of laws that include, divorce actions, paternity actions, custody and visitation issues, child support issues, property division issues as well as conservatorship actions.

Medical Marijuana and Child Endangerment Laws

You are a Medical Marijuana patient with a Doctors Recommendation living in a single family residence with your wife and child and are growing medical marijuana in your own house. A police officer knocks on the door with a search warrant to search your house for illegal drugs and contraband. As an added bonus behind the slew of law enforcement is a person from Child Protective Services who promptly snatches up your five year old child when the police find a dozen marijuana plants in one room of your house, claiming child endangerment.

The police arrest you and your wife, and charge you with possession for sale and cultivation of marijuana as well as child endangerment. It is a scenario that has happened and is happening more and more. Why?? - because members of law enforcement generally receive little or no training regarding medical marijuana or the laws on the use of MMJ. Many see possession of any marijuana as a pretext to enable them to “Side step” the Medical Marijuana Program Act and make an arrest based on the federal laws prohibiting the possession, use, transportation and sale of a schedule one substance. The child endangerment charge is simply a way for law enforcement to increase your overall risk and “raise the stakes” involved.

The stakes, in reality are much greater. First - it’s your child. Second, the odds of getting a bad judge, a bad cop or a bad prosecutor increases exponentially because you have twice as many entities with which to deal: The criminal justice system and the CPS system. When you double the system, you quadruple the people involved. The danger of running into the idiot factor goes way up.

Child endangerment is defined under California Penal Code Section 273a. The law treats acts of child endangerment as domestic violence. Child endangerment is defined under the penal Code as -willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering or to be placed in a dangerous situation. The crime does not require that a child suffer an actual injury.
Examples:

  1. Leaving dangerous weapons, including loaded guns and knives, within reach in a home where children live;

  2. Negligently leaving a child with a babysitter whom you know to have a history of abusive behavior; and

  3. Failing to get medical treatment for a very sick child.

The penalties for a violation of the Child Endangerment law vary. If the circumstances of the child endangerment charges involve a risk of great bodily harm or death for the child, then the offense of child endangerment is a wobbler, which means it may be charged as either a misdemeanor or a felony.
The penalties for a misdemeanor child endangerment include up to one (1) year in county jail.
Felony child endangerment penalties vary from two (2), four (4), or six (6) years in California state prison. If there was no risk of great bodily harm or death to the child, then child endangerment in California is a misdemeanor.

Does growing marijuana plants in your home or in front of your kids constitute willfully causing unjustifiable physical pain or mental suffering or to be placed in a dangerous situation? Probably not. If you are arrested and charged, you will have the chance to present your case to a jury of your peers. My prediction is that you may wind up with a hung jury. BUT….. a Child Protective Hearing Officer would also have to rule on the issue as well. In the mean time, someone else will have your kids, and you may be forced to refrain from growing around or near your kids as a condition of their return.

If you have a toddler and leave the plants in a place where he or she has access, you will have a high risk of being convicted. (Anyone who has raised kids knows that they put everything in their mouths). If you treat the plants or the meds the same way any reasonable person treats prescription medicine, you should be ok if the case is tried.

The old adage that discretion is the better part of valor so situational avoidance is the best solution. It’s easy to see how a nosey neighbor or an officious meter reader can lead to an anonymous tip, which leads to a police canine -hit, which leads to a search warrant and then things get real messy and real expensive, real fast. So if you have kids at home, growing at home is probably not your best answer.

Charles M. Farano is a criminal defense and land use lawyer who represents medical marijuana patients, growers medical marijuana consultants and medical marijuana collective dispensaries.