Opinion
No. 59429-0-I.
December 22, 2008.
Appeal from a judgment of the Superior Court for Island County, No. 05-3-00383-7, Alan R. Hancock, J., entered December 11, 2006.
Affirmed by unpublished per curiam opinion.
In this family law case, the trial court ordered that the father's visits with his young children be supervised because of the father's use of marijuana for medicinal purposes. Finding no manifest abuse of discretion, we affirm.
FACTS
Cameron and Desire Wieldraayer were married in 2003 and separated in 2004. The couple had two daughters.
For simplicity, the parties will be referred to by their first names.
Desire filed for divorce in November 2005. On December 23, 2005, the trial court considered Desire's motion for entry of a temporary parenting plan. Desire requested that the children reside a majority of the time with her and that Cameron only have supervised visitations with their children. Desire expressed concern for the children's safety and welfare due to Cameron's use of marijuana.
Cameron denied having a drug problem. He offered to have a stipulation inserted in the parenting plan requiring the parents not to use illegal drugs when the children were with them. In a declaration, Cameron also offered to provide a UA (urinalysis) drug test. The court ordered the parents not to consume drugs or alcohol within 24 hours of receiving the children. The court also ordered Cameron to obtain a clean UA on or before January 6, 2006.
On August 25, 2006, a hearing was held on Desire's motion to amend the temporary parenting plan. She claimed that Cameron's visitation with the children should be professionally supervised because of his flagrant and ongoing drug use. The court entered such an order.
This matter proceeded to trial on November 15, 2006. Cameron represented himself. Cameron testified that he was a qualified medical marijuana patient and was authorized to use the drug for his own medical purposes. Cameron admitted that he did not submit the urine test as ordered by the court. Cameron further admitted consuming marijuana for recreational purposes in the past. And while Cameron testified that he stopped using the drug in November 2005, he resumed taking marijuana in March 2006, many months before he was authorized to use the drug as a medical marijuana patient. According to Cameron, Desire had "brought the kids over to [him] three or four nights a week and left them at [his] home with the understanding that, yes, marijuana is present."
RP 11/15/06 at 71.
Desire believed that Cameron was still using marijuana on a regular basis and feared that he would not follow any restrictions based on his past behavior. After considering the testimony from both parents and the report prepared by the guardian ad litem (GAL), the court ruled that Cameron's visits with his children must be monitored due to Cameron's use of medical marijuana. In its oral ruling, the court addressed the issue of visitation:
RP 11/15/06 at 115.
I would comment that I do hope that [Cameron] is mindful of the serious problem that marijuana use is particularly as it relates to caring for children. I fully recognize that people of this state have decided to pass this medical marijuana law and that's the law of the state of Washington. On the other hand, the Court cannot countenance a situation where a person is using marijuana, under the influence of marijuana and is caring for children. That just cannot happen. There's nothing in the medical marijuana law that deprives the Court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs.
The court went on to ask the parents and GAL to submit recommendations concerning the means one could employ to verify that Cameron was in control of his marijuana use so that he could have unsupervised visits with his children. As the court explained:
I'm asking for objective criteria by which the Court can determine that you will not be using marijuana when you're with the children and you will not be using marijuana before the children — before you have time with the children. Whether that would be taking drug tests or whether or not it would be in good standing in a treatment program or whether that would be some other matter, I don't know. I'd like to give that some more thought. I'd like to give you the opportunity to give some more thought to that as well as [Desire].
Thereafter, the GAL and Cameron both filed multiple pleadings with the court.
At the next hearing on December 11, 2006, counsel for Desire explained the difficulty he and the GAL had in fashioning an objective test to monitor Cameron so that he was not under the influence of marijuana during the time he cares for his children:
[W]hat we found, unfortunately, is that's there's no — similar to alcohol, there's no portable breath test or, you know, THC DataMaster machine that he can use objectively immediately before a visit. There's a time frame between an objective test as in a UA result and when a visit would occur and there's no way to determine that after a particular test was taken that use did not happen in the interim between the objective test on the one hand and a visit on the other.
So we've done our best and as the Court can see, even with the ruling of completely stopping marijuana, even that is going to be difficult enough going through all of these five or six objective measures to prove that the children are safe. So that alone is going to be complicated enough in my opinion to satisfy the Court's need for an objective measure let alone the case of continuing use.
The court entered a final parenting plan in which the children reside a majority of the time with Desire. The court also ordered that Cameron's visitation with his children be monitored due to Cameron's use of medical marijuana. The plan outlined the steps Cameron would have to take to obtain unsupervised visitation.
"The Respondent's visitation may be changed from supervised to unsurvised if he satisfies the following objective criteria:"
1. The Father shall completely stop using marijuana in any form and for any purpose.
2. The Father shall submit to UAs until they indicate no trace of marijuana, i.e., they are both clean and valid. Valid means, among other things, that the UA does not indicate a high level of creatinine, which indicates an attempt to dilute the sample.
3. After the Father receives his first clean and valid UA for marijuana, he shall continue to take UAs weekly, for two months, then bi-weekly, for two months, and then monthly, for as long as he wants unsupervised visitation with the minor children.
4. After the Father's first UA comes back clean and valid, he shall have unsupervised visitation on Saturdays from 9:00 a.m. to 7:00 p.m. each week. After two months of clean and valid UAs, his residential schedule shall be unsupervised from Friday afternoon until Saturday at 7:00 p.m., every other weekend.
5. To insure compliance with these objective criteria, the Father shall provide copies of his UA test results to the Mother immediately after he receives them. The Father shall submit these results to the mother consistent with his UA testing schedule outlined in paragraph 3, above.
6. If, at any time after the father begins to exercise unsupervised visitation with the children consistent with paragraphs 1-5, above, the father fails to timely provide the mother with copy of his UA test results or, alternatively, the results indicate either that the father is using marijuana or that a UA was invalid, the father's visitation shall revert to supervised visitation, consistent with the timeframe and all the restrictions listed in paragraph 3.10 of this Order, except for the "Other" section of paragraph 3.10.
7. After 6 consecutive months of father's compliance with the foregoing criteria, father's visitation shall be unsupervised without further restrictions.
On the same day, the trial court entered an order striking certain declarations and other documents filed by Cameron after trial:
(1) All documents filed by respondent after the conclusion of trial on November 15, 2006, from November 15, 2006 to December 11, 2006, the date of the presentation hearing, are stricken from the record, and the court will not consider any of these documents as part of the evidence in this case.
(2) The court is considering respondent's recommendations but none of the alleged factual evidence provided by respondent.
Cameron appeals.
Although Desire has not filed a responsive brief, the standard of review and the responsibility of this Court are the same as in any other appeal. In re Marriage of Gilbert, 88 Wn. App. 362, 366, 945 P.2d 238 (1997).
ANALYSIS
Our courts have traditionally deferred to the trial court in the area of family law. In re Marriage of Maughan, 113 Wn. App. 301, 305, 53 P.3d 535 (2002). The trial court had broad discretion to fashion the provisions of a parenting plan, considering the statutory factors and the child's best interests. RCW 26.09.187; In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). Discretion is abused only when a decision is manifestly unreasonable or based on untenable grounds or for untenable reasons. Kovacs, 121 Wn.2d at 801.
Cameron contends that the trial court cannot restrict his right to have unsupervised contact with his children based on his use of medical marijuana without violating RCW 69.51A.040(2), which provides:
If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated provider who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.
We do not read the statutory language so broadly. Nothing in RCW 69.51A.040(1) creates any new legally protected right or interests for the medical marijuana user in the area of family law. The dangers inherent in the use of marijuana do not turn on whether or not the use is sanctioned by the State. Merely because Cameron is entitled to use marijuana to improve his medical condition under RCW 69.51A.040(2) does not mean that such use is not detrimental to his young daughters. In the family law setting, the best interests of the child are of paramount importance. RCW 26.09.002; Kovacs, 121 Wn.2d at 801.
Citing In re Marriage of Wicklund, 84 Wn. App. 763, 932 P.2d 652 (1996), Cameron contends that there is no evidence that his use of medical marijuana has caused his children any harm or difficulty. But Wicklund focused on whether the father's homosexuality caused his children injury that warranted a reduction in his parenting time. Here, the issue involves the abusive use of an intoxicating drug that is specifically recognized by RCW 26.09.191(3)(c) as a reason to limit visitation.
Cameron was prescribed marijuana for pain relief. It is beyond peradventure that marijuana dulls more than just pain. See RCW 46.61.502(1)(b) (statute criminalizing driving under the influence of alcohol or drugs); State v. Smith, 93 Wn.2d 329, 338, 610 P.2d 869 (1980) ("Marijuana creates a euphoric state of intoxication which impedes learning, incentive, efficiency, and, importantly, motor coordination.").
Just because Cameron's use of marijuana was legally prescribed does not mean that he is entitled as a matter of right to unsupervised visits with his children. Cameron had a history of using marijuana for its intoxicating effects long before he became a medical marijuana user. And while we can certainly envision circumstances under which the child of a medical marijuana user suffers no ill effects from the drug usage, such is not the case here. Evidence was presented at trial that Cameron allowed his elder daughter, age four, to sniff the glass while he was smoking marijuana. On another occasion, Cameron stated that he was picking up the children after smoking more marijuana. On yet another occasion, Cameron boasted that once he passed the UA drug test he could do whatever he wanted. And while Cameron categorically denied that he ever did or said those things, credibility determinations are for the trier of fact. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996). The record shows that Cameron continued to use marijuana around his children even after he promised to quit. Given the children's tender age, Cameron's predilection to use marijuana for its intoxicating effects, and the other evidence presented, we cannot say that the trial court abused its discretion in requiring that Cameron's visits with his children be supervised until certain conditions were met.
Cameron also contends the trial court violated RCW 26.12.175(1)(c) when it struck the pleadings he filed following the trial. Contrary to Cameron's argument, the court's December 11 order clearly complied with the statutory requirements. There is no error.
RCW 26.12.172(c) states:
The parties to the proceeding may file with the court written responses to any report filed by the guardian ad litem or investigator. The court shall consider any written responses to a report filed by the guardian ad litem or investigator, including any factual information or recommendations provided in the report.
Affirmed.
FOR THE COURT: