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Appeals court sides with mother of baby in marijuana case

A mother who gives birth to a baby with marijuana in its system cannot be charged with child neglect if she has a doctor's permission to use the drug.

PHOENIX — A mother who gives birth to a baby with marijuana in its system cannot be charged with child neglect if she has a doctor’s permission to use the drug.

The state Court of Appeals overturned the decision by the Department of Child Safety to put Lindsay Ridgell on the agency’s “Central Registry,’’ which is a list of substantiated instances of child abuse and neglect.

Judge Randall Howe, writing for the unanimous three-judge panel, said the agency erred in brushing aside the evidence that Ridgell had a card entitling her to use marijuana for medical reasons. He said the 2010 Arizona Medical Marijuana Act provides immunity for those with such a state-issued card from being subject to arrest, prosecution, penalty or denial of any right or privilege.

Howe acknowledged that DCS contends Ridgell never told the doctor who recommended the marijuana — the legal precursor to getting a card — that she was pregnant. Ridgell disputes that point.

But the judge said all that is irrelevant.

He pointed out that under the state’s child-welfare laws, pregnant women cannot be charged with abuse and neglect if they are taking medications “under the direction of a physician.’’ And since it is undisputed that Ridgell did have a doctor’s recommendation, that ends the discussion.

Howe stressed that he and his colleagues were not endorsing that legal protection provided to pregnant women who use marijuana, saying it “may be unwise.’’

“The United States government does not recognize the medical value of marijuana,’’ he wrote. “And the Center for Disease Control and Prevention warns of the effects of marijuana use during pregnancy.’’

Howe also noted that the 2010 law requires warnings at marijuana dispensaries, and even on user registration cards, about the dangers of marijuana use on a fetus.

“But marijuana’s proper role in society has been long debated, and the wisdom of legislation is not for this court to decide,’’ he wrote.

A spokesman for DCS said the agency is reviewing the decision and has no comment.

Court records show Ridgell, a Dewey resident, obtained a medical marijuana card about 10 years ago after being diagnosed with irritable bowel syndrome and has used the drug ever since. She continued to use marijuana even after becoming pregnant in September 2018.

She renewed her medical marijuana card in late December 2018, telling the certifying doctor she was pregnant.

The doctor said she warned Ridgell that use of marijuana during pregnancy might result in her being reported to DCS at birth. But the doctor certified that, in her belief, Ridgell is “likely to receive therapeutic or palliative benefit from … the use of marijuana to treat or alleviate the qualifying patient’s debilitating medical condition.’’

In May 2019, she again saw her obstetrician, telling that person she had stopped taking marijuana when she found out she was pregnant.

Two later later, she gave birth to a baby boy who stopped breathing a minute after his birth and required resuscitation.

After exhibiting “jitteriness’’ he was transferred to Phoenix Children’s Hospital for evaluation.

Tests revealed the baby had marijuana, an anxiety drug, caffeine and Benadyl, notifying DCS that he had been born “substance exposed.’’ That constitutes neglect if the exposure was not caused by treatment administered by a health care professional.

DCS, after an investigation, placed her on its Central Registry even though the baby remained healthy and that the “jitteriness’’ was never linked to marijuana use.

She objected, noting that being placed on the list can affect someone’s ability to work with a child welfare agency or any firm that contracts with the state to provide direct services to children or vulnerable adults. The appellate judges sided with her.

“No one disputes that Ridgell is a qualifying patient under the Arizona Medical Marijuana Act,’’ Howe wrote.

“Under AMMA, then, she is presumed to have taken marijuana for ‘medical use,’ which means taking it to treat or alleviate her medical condition or symptoms,’’ the judge continued. “And her marijuana use is the equivalent of taking any other medication under the direction of a physician.’’

Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at “@azcapmedia” or email azcapmedia@gmail.com.


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