DCFS And Illinois Courts Refusing To Follow New Cannabis Anti-Discrimination Law: Parents Risk Losing Children Over Cannabis Use Despite Legalization

By Jay Lindsay, CROSSROAD LEGAL

ILLINOIS: On June 25, 2019, Governor J.B. Pritzker signed into a law sweeping new legislation legalizing personal recreational use of Cannabis in Illinois. Under the law, Illinoisans can now use cannabis not only for medicinal purposes, but also recreationally. The law also prohibits discrimination based on cannabis in certain situations. Specifically, the anti-discrimination provision is strategically drafted to avoid cannabis users from suffering negative or adverse impacts in Illinois family and juvenile courts, including actions by Child Protective Services. Despite passage of this law, DCFS and courts remain unwilling to comply with these anti-discrimination rules.

To fully understand why this is important and how it affects Illinois parents, a little background is necessary.

The Cannabis Regulation and Tax Act of 2019

Effective the first day of 2020, Cannabis became legal for personal use in Illinois. The new law is entitled the Cannabis Regulation and Tax Act, and the personal use provisions are found in the Illinois Code at 410 ILCS 705/10-5 et seq. Under the new law, Illinois residents are legally permitted to use and possess Cannabis and Cannabis-related products. There are, of course, limitations.

POSSESSION OF CANNABIS

  • Up to 30 grams of Cannabis in raw form
  • Cannabis-infused product or products containing no more than 500 mg of THC
  • Five grams of cannabis product in concentrated form 

PRIOR INCARCERATIONS

Under House Bill 1438, which ultimately became the new law last year, the Governor has created a clemency process that will ultimately help to exonerate and clear the records of hundreds of thousands of people convicted of minor Cannabis charges. 

  • Automatic expungement for any possession charge of up to 30 grams
  • Potential clemency for possession of 30-500 grams, but only upon petitioning a court to vacate the conviction.

The Marijuana Policy Project estimates that this will result in an estimated 770,000 overturned convictions. This is perhaps the most notable part of the legislation, because it could effectively re-enfranchise almost a million Illinois residents of things like voting and gun rights. Under current law, drug-related convictions can be used as a reason for the Illinois State Police revoking or denying a Firearm Owners Identification Card (FOID).  Likewise, for felony convictions, many people lose the right to vote. Many of these rights are now likely subject to restoration.

Public Support for Cannabis

Before directly addressing the issue of discrimination, it is worth noting that the majority of Illinoisans support legalization. Even in the most rural and conservative reaches of the state, Cannabis is gaining wide-spread acceptance. According to the advocacy group, Legalize Illinois, the following statistics were reported in relation to resident approval of legalization:

  • Chicago: 77% support and 22% oppose legalization
  • Downstate: 58% support and 40% oppose legalization
  • Statewide: 66% support and 32% oppose legalization

Anti-Discrimination Provision

Now that the background and legislative underpinnings are clear, we turn to the problem at hand.  Under the new law, there’s a specific provision that directly applies to family courts and actions by the Department of Children and Family Services (DCFS). The provision found at 410 ILCS 705/10-30(a) outlines the precise ways that the government may not use a person’s conduct under the statute. Below, the statute is broken into three parts for clarity:

Neither the presence of cannabinoid components or metabolites in a person’s bodily fluids nor possession of cannabis-related paraphernalia, nor conduct related to the use of cannabis or the participation in cannabis-related activities lawful under this Act by a custodial or noncustodial parent, grandparent, legal guardian, foster parent, or other person charged with the well-being of a child . . .

. . . shall form the sole or primary basis or supporting basis for any action or proceeding by a child welfare agency or in a family or juvenile court, any adverse finding, adverse evidence, or restriction of any right or privilege in a proceeding related to adoption of a child, acting as a foster parent of a child, or a person’s fitness to adopt a child or act as a foster parent of a child, or serve as the basis of any adverse finding, adverse evidence, or restriction of any right of privilege in a proceeding related to guardianship, conservatorship, trusteeship, the execution of a will, or the management of an estate . . .

. . . unless the person’s actions in relation to cannabis created an unreasonable danger to the safety of the minor or otherwise show the person to not be competent as established by clear and convincing evidence. This subsection applies only to conduct protected under this Act. 

Juvenile Court Act vs. Cannabis Regulation and Tax Act

In a landmark Supreme Court decision, Justice Sandra Day O’Connor wrote, that there is “a fundamental right of parents to make decisions concerning the care, custody, and control of their children.” See Troxel v. Granville, 530 U.S. 57 (2000).

Moreover, the Court wrote, “[t]he liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. See id. at 65. 

It is with this context from the Supreme Court that we next must address how Illinois law treats removal of children for abuse and neglect allegations.

Under the Illinois Juvenile Court Act of 1987, DCFS is charged with protecting minors from abuse and neglect. When there is a credible report of abuse, DCFS will investigate the allegations and, if founded, may remove a child from their home, place them into emergency protective custody, then turn the matter over to the local States Attorney for the appropriate county. At this time, the prosecutor will file a petition to adjudicate the minor a ward of the court. If successful, the child will be placed into foster care, while a provider agency, such as Caritas or Lutheran Child and Family Services (LCFS), will take over managing the casework associated with the matter. A service plan is created, and parents must complete the service plan and meet all requirements of the agency before the children can be returned.

Under the Juvenile Court Act, 705 ILCS 405/2-18(2)(f), the court deciding the matter at the adjudicatory hearing may consider:

proof that a parent, custodian or guardian of a minor repeatedly used a drug, to the extent that it has or would ordinarily have the effect of producing in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence of neglect.

Under the Juvenile Court Act drug is not a per se or automatic reason for removal of children. Drug use must create a “substantial” effect on the parent, to the point that the Department feels that the parent cannot properly care for a child. In practice, this is very different, however. Typically, ANY use will be enough for DCFS to remove a child. Historically, this included Cannabis. 

Breaking it Down

Since there are now two potentially conflicting laws, Courts are left to decide whether or not they will follow the new anti-discrimination provision by simply disregarding evidence of Cannabis use, or whether they will continue to view Cannabis as a drug that supports removal of minor children.

Case Examples from Practice

 The author is a former Assistant Public Defender for a rural county in downstate Illinois. In the first year since legalization, numerous cases have come before the court with little evidence of drug use except minor Cannabis possession or positive THC test results. Consider the following* examples:

  • Young mother has argument with boyfriend, and children are removed due to allegations of domestic violence. After 6 months, all services are complete. There was no evidence of illegal drug use, alcohol abuse or other substance-related issues. While under oath, a case worker testified that the sole reason why the children have not yet been returned to the mother from May 2020 to November 2020 is her positive drug tests for THC. At a hearing, one child was returned to a father, in part due to the fact that mother was alleged to have continued using Cannabis.

Rationale – According to DCFS, the mother had a service plan that required her to remain free from all drugs, including Cannabis; therefore, it is the State’s position that even though Cannabis is legal, she is prohibited from using it.

  • Judge orders young mother to receive overnight visits and have children returned within 30 days, due to minimal nature of the case. DCFS refuses to honor the court’s order, based on allegations that the mother is still using Cannabis. A single positive test for THC from several months earlier used to argue that she is unfit to have the children go home. The court allowed the matter to be continued for another 90 days and decided not to return the child.

Rationale – According to DCFS, there were concerns about the mother using Cannabis, because she is underage (18) at the time, and thus use would be considered illegal.

  • Young mother has a messy home and is accused of being under the influence while caring for her small child. Notably, under oath, the police officer repeatedly referred to discovering evidence of illicit drug use in the home. On closer cross-examination, it turned out the mother had an empty vape pen on her nightstand. No Cannabis was located on the property. The mother did admit to using Cannabis at times, but no evidence was provided to indicate she had used Cannabis that day or that she was in possession of Cannabis. While other reasons were used for removing the children, such as the condition of the home, this was a critical piece of evidence heard by and relied upon by the court.

Rationale – According to DCFS, simply having marijuana paraphernalia in reach of a minor child was sufficient to remove the children, as it indicated a drug addiction.

Facing the Dilemma Head-On

With these examples squarely before us, it’s important to note a few things. First, possession of 10 grams or less of Cannabis by a person under the age of 21 is considered a civil violation, punishable by a fine of between $100 and $200. See 720 ILCS 55/4. In fact, possession doesn’t even reach Class A misdemeanor status (comparable to a first-offense DUI) until a minor possesses between 30 and 100 grams of Cannabis. With this in mind, it’s difficult to understand how DCFS and the courts can deprive a parent of such a fundamental liberty as the right to raise one’s own child over such a minor offense. Likewise, the Cannabis Regulation and Tax Act clearly outlines that Cannabis use should not be considered in these court proceedings. The law makes no exception for age of the user.

Where We Go Next 

Ultimately, the problem is that although Cannabis has been fully legalized for recreational use, judges and DCFS are still very much using Cannabis as the sole reason (or at a minimum, a substantial reason) for removing children from parents. And once removed from their parents, children are often kept in foster care for years. If the parent tests positive for Cannabis even once, the courts and DCFS will invariably argue that the parent is failing to make reasonable efforts and substantial progress toward the return of the child. This key language is used to eventually terminate parental rights for good.

It is imperative that the fundamental liberties of parents in Illinois be protected at all costs. As Justice O’Connor wrote in 2000, the right to raise one’s own children is perhaps the oldest recognized liberty in our country’s history. Indeed, this fundamental right is being breached every day in courtrooms across the state, because the clear text of the law is being ignored. Despite Illinois passing a law that prohibits consideration of Cannabis use or possession in DCFS proceedings and juvenile court hearings, state agencies and judges remain completely unwilling to disregard it. In doing so, one could certainly argue that the courts are re-criminalizing Cannabis. In fact, the outcome is that one can lose their children forever for something that amounts to little more than a civil fine if done underage. Imagine losing your children for burning without a permit or littering.

It’s high time that the Illinois legislature put some teeth in the law by creating some form of penalty for state agencies that disregard the law. It also raises the possibility that some parents may have significant civil actions against the State of Illinois where DCFS and provider agencies disregard the law and remove children due to Cannabis use in the home. Illinois NORML continues to advocate and fight hard for the residents of the state every day.

*Due to confidentiality of juvenile court records, the author is unable to discuss specific cases or names of participants.


Jaye R. Lindsay is the founding attorney for CROSSROAD LEGAL, a general practice law firm based in O’Fallon, IL.

New Report: Half Of All Marijuana Arrests In Montana Are For One Gram Or Less

A new study analyzes 2007-2018 FBI arrest statistics and estimates that each marijuana arrest costs the state over $10,000

MONTANA:  New Approach Montana, the 2020 ballot campaign backing CI-118 and I-190, has published a report analyzing marijuana arrests in Montana from 2007 through 2018. The report is based on statistics from the U.S. Department of Justice’s Uniform Crime Reporting (UCR) Program and is authored by Jonathan Gettman, Associate Professor of Criminal Justice at Shenandoah University.

The report notes that, “from 2009 to 2018, Montana law enforcement officers arrested 13,715 people for marijuana offenses, 95% of them for possession.” Using figures from the Department of Justice’s Bureau of Justice Statistics, the report also analyses the costs associated with these arrests and estimates the state spends $10,679 per arrest. The 56-page document provides detailed data tables showing trends in arrests, racial disparities in arrest rates, and arrests by counties.

Ken Linzey, a retired Montana corrections officer, commented, “This report provides the data to verify what many of us in law enforcement already know to be true anecdotally: arresting adults for marijuana is a colossal waste of resources. On top of that, we’re needlessly ruining a lot of young people’s lives — in many cases for less than a gram of marijuana. The current system simply doesn’t serve the people of Montana.”

The report’s other key findings include:

  • In 2018, roughly one out of 20 of all arrests in Montana was marijuana-related.

  • Over 80% of all marijuana arrests, including those for sales, involve seven grams or less.

  • Montanans under the age of 25 accounted for 62% of marijuana arrests in the 10-year period from 2007 to 2016.

  • The vast majority (98.7%) of marijuana violations in Montana from 2007 to 2016 were not associated with other criminal offenses.

  • In 2018 the marijuana possession arrest rate in Montana for Native Americans was 1.9 times higher than the rate for whites. For Black Montanans, the arrest rate is 5.3 times greater than for whites.

  • The report notes that individuals with an arrest record for marijuana can face long-term consequences, such as difficulties in getting a job, accessing affordable housing, and qualifying for college loans.

Governor Wolf: Legalization Of Adult-Use Cannabis Can Lead To Economic Gains And Restorative Justice For Pennsylvanians

PENNSYLVANIA:  Governor Tom Wolf visited The Mountain Center in Tobyhanna, Monroe County today to talk about the economic growth potential and restorative justice benefits of legalizing adult-use cannabis, something the state General Assembly has not yet done despite multiple requests from the governor and Lieutenant Governor John Fetterman to take up legislation this fall.

“This year, I again went to the General Assembly and asked them to make legalizing adult-use cannabis a priority for the fall as we work to find ways to overcome the economic hardships of the COVID-19 pandemic,” Gov. Wolf said. “To date, there has been no movement to advance legislation. So, I’m here today to ask again, and to focus on two particular benefits of legalization – potential economic growth and much-needed restorative justice.”

The governor described how legalizing adult-use cannabis offers the same potential for economic growth that the historic farm bill of 2018 did for hemp farming after decades of government prohibition of the industry.

Hemp was once a widespread crop in Pennsylvania, cultivated in the commonwealth for more than 250 years and grown for seeds, fibers and extracts. Though they look similar, the governor was quick to point out that hemp is not marijuana. Hemp and marijuana are two different varieties of the same plant species, but hemp does not contain high levels of THC, the chemical that makes marijuana a controlled substance.

“Much of our knowledge about how to grow, process and use hemp was lost after industrial hemp was regulated and banned along with marijuana in the 1930s,” Wolf said. “And Pennsylvania lost the benefits of an industry with a long history of providing jobs and resources here in the commonwealth. When hemp and marijuana were banned, we didn’t just lose jobs, we lost decades of research opportunities, innovation and economic growth.”

The governor was joined by Representative Maureen Madden and hemp farmer Eric Titus White.

White described how his hemp farm has provided him with economic opportunities along with a chance to literally put down roots in his home state of Pennsylvania.

“The cannabis plant is capable of stimulating our economy, healing our soil, and bringing the focus back to natural medicine and natural farming,” White said.

“I fully support the administration’s efforts to introduce the legalization of adult recreational cannabis in such a way that invests much-needed financial resources in our underserved communities and enacts restorative justice programs throughout the Commonwealth,” Rep. Madden said.

Monroe County Senator John Blake offered his support for adult-use cannabis legalization.

“I appreciate the work of the Governor and the Lt. Governor to gauge public support for the legalization of adult use cannabis and also to weigh the potential economic benefit of legalization in PA,” Blake said. “Pennsylvania’s medical marijuana program has proven to be among the best in the nation and I believe strongly that many of the protocols, regimens and controls could be replicated to ensure positive economic benefit and proper regulation of adult-use cannabis in our Commonwealth.”

Along with stressing that legalizing adult-use cannabis will create economic growth opportunities, the governor focused on how cannabis criminalization laws have disproportionately harmed minority communities in Pennsylvania, and contributed to economic harm and trauma in historically disadvantaged areas of the state.

“Every year in Pennsylvania, another 20,000 people get cannabis-related criminal charges that can keep them from getting the jobs and housing they want,” said Lt. Gov. Fetterman. “It’s time we stop ruining people’s futures over something that’s already legal in several states and something that most Pennsylvanians don’t even think should be illegal.”

“We are taking steps to reverse the injustices caused by marijuana criminalization,” Gov. Wolf said. “In 2018, I signed the Clean Slate bill, which allows for the sealing of records for certain low-level offenses if a person has been free from convictions for ten years. That law can be applied to certain marijuana-related offenses, and the Board of Pardons has expedited pardons for low-level marijuana offenses. But there is much more that needs to be done to reverse decades of injustice. And we need to start by decriminalizing cannabis and legalizing it for adult use.”

Cannabis Legal Trends To Watch In 2018

By Sharon Golden

Ever since you were young, your family was very problematic. There was never a day when you didn’t hear your parents shouting and arguing with each other. You would often lock yourself in your room as an escape from all the tension in the house. You’d rather be alone rather than be in a situation where everyone around you is shouting. As you got a little older, you opted to use marijuana to relieve the stress, anxiety and fear that your family brings you. This has been legal in the state you’re living, so you don’t worry about violating any laws whenever you use marijuana. Because of this, marijuana has become your escape whenever things don’t go according to plan. You’ve been using this almost every day because the relief it gives you is exceptional. Since you’re looking forward to use marijuana in the coming years, you’re very curious on the marijuana legal trends to watch in 2018. You’re excited to know how you can use marijuana in more ways than one.

  1. Marijuana will be used in sports: Sports organizations have gradually acknowledged the fact that marijuana has helped players in treating physical ailments and improve the condition of their nervous system. Aside from that, marijuana has been used in the past to treat sports-related injuries. Yes, marijuana can do all of those things. Some of the players who have been using marijuana are Bryon Morris, Michael Phelps and Nick Diaz. Additionally, National Basketball Association (NBA) has already given a statement which now allows their players to use marijuana. Given that the NBA is one of the most recognizable sports organizations in the world, it won’t be long before other organizations will also follow their lead!
  1. Marijuana will be used in healthcare: More and more health professionals are slowly adapting marijuana in some of their medical treatments. It has been found that marijuana is effective in treating medical conditions such as muscle spasms, nausea and even Crohn’s disease. Researcher is also in the works to determine what other ailments or diseases can be treated with medical marijuana. As such, you can expect that medical marijuana will be prominent in different states across the globe by 2018.
  1. Marijuana will be taught in schools: Yes, you’ve read that right. Because marijuana has made notable advancements in the medical and recreational markets, there are certain states  which offer marijuana-related college courses. In California for example, a university in Irvine is currently developing an interdisciplinary research center which aims to investigate marijuana. Consumers can also educate themselves with marijuana classes and tours that allows them to learn about the differences of using marijuana medicinally and recreationally. With all of these efforts, more people will learn about the benefits of marijuana and will no longer consider the drug as something that deteriorates health.
  1. Marijuana will be in pet food and treats: Not only is marijuana beneficial to human beings but to pets, too. The number of pet owners who find the medical advantages of using hemp formulas is gradually increasing and demand is developing quickly. The industry is now seeing an increase of companies which would produce and sell wellness items for pets which contains marijuana as one of the main ingredients.
  1. CBD oils will be successful: Cannabidiol is the part of the marijuana plant that doesn’t cause the certain side effects associated with marijuana use. Because of this, CBD oils are now used in medical marijuana to treat pain or the symptoms associated with chemotherapy. With the ever-changing marijuana map and the progress of research in marijuana in the field of medicine, the CBD oil industry is expected to have a boost in profits in the coming years.
  1. Marijuana will be available in deliveries: You can now purchase marijuana in different ways and one way of doing this is by having it delivered to your doorstep. There are also big players in the industry which funded millions of dollars to allow marijuana to have a delivery service and to fulfill all of your marijuana needs right in the comforts of your home!
  1. Marijuana will be in holistic and wellness products for you: You can now soothe your body, mind and soul with marijuana as this will be present in body creams, shampoos and even supplements. You’ll have more ways of enjoying your favorite marijuana!

For sure, you’ll be able to use marijuana in different ways this 2018. There are now a lot of mediums available on how you can enjoy marijuana. Since this is legal in your state, no one will ever hinder you from using it the way you want. You can have the liberty to use marijuana wherever, whenever. So if this is the only drug that gives you pleasure, go ahead and indulge yourself!

However, there are some states around the world where it is illegal to use cannabis in any way. If you or you know someone who has been involved with the law due to cannabis use, this website can be of very great help.


Sharon Golden has been a law writer and businesswoman for more than 20 years, and she is currently working on his next big project. Her pieces offer knowledge on various law topics that are easily understandable to the common reader. Sharon cannot be separated from Sophia, their family dog. When Sharon has the time, she’s always seen walking Sophia around the city.

MMJ International Holdings Pursuing Legal FDA Cannabis Medicine Approval

NEW YORK: MMJ International Holdings announced that its affiliate, MMJ Bioscience, has finalized a partnership agreement with Terra Life Science group, a private Canadian based pharmaceutical manufacturer, to produce cannabis medicines for the groups FDA approved studies.

Last weeks announcement by Attorney General Sessions on the recision of the Cole Memorandum positions MMJ International Holdings as one of the only privately help companies pursuing the legal regulatory guidelines designated by the federal government for approval of a cannabis medicine.

Tim Moynahan, MMJ BioSciences chairman stated, ”The seasoned leadership team at MMJ BioSciences understands and executes its progressive development strategy in a legal, regulatory and fiscally responsible manner. Our company’s success is the result of our focus on identifying patient medical needs and addressing these patients needs by developing FDA approved medicines from the cannabis plant.”

Tim Moynahan added, ”We are excited to be a partner with Terra Life Sciences. This agreement enables MMJ BioScience with a significant product development capability. We anticipate a number of important synergies between the two companies that will be addressing patients needs with MMJ BioScience’s U.S. Food and Drug Administration (FDA) multiple sclerosis study beginning soon.”

Dr. Bianca Weinstock-Guttman, MMJ BioScience’s principal investigator is a Professor of Neurology at the State University of New York at Buffalo who serves as Executive Director of the New York State Multiple Sclerosis Consortium. Dr. Weinstock-Guttman will oversee the FDA approved study exploring the potential therapeutic applications of cannabinoids for progressive multiple sclerosis patients.

In late 2017 MMJ BioScience had submitted an application with the United States Food and Drug Administration (FDA) for approval of a new pharmaceutical drug. As a result of FDA application and Terra Life Sciences partnership, MMJ Bioscience now will offer excellence in cannabinoid medicine manufacturing that solves dosing issues by utilizing various delivery systems such as softgel pills, liquids, topical sprays and liposomes, with capabilities for quick release, sustained release and targeted release of cannabinoid medicines. Unlike other cannabis-type medicines, MMJ BioScience’s medicine is plant derived. When approval is received from the FDA the new medicine would be on sale across America as an approved drug.

MMJ BioScience’s expected approval by the FDA for its new medicine would have a major impact on the state to state federally illegal cannabis industry. In addition to Attorney General Sessions recent recision of the Cole Memorandum the FDA had also issued several cease and desist letters to firms that are marketing unapproved cannabinoid products. Whereas non-pharmaceutical companies cannot export their products across state lines, MMJ BioScience would be able to sell its medicine in pharmacies once prescribed by physicians.