04 Mar Marijuana and Child Neglect: The Kentucky Supreme Court Weighs In

Well, folks, the Kentucky Supreme Court has spoken on Commonwealth v. K.O. on the issue of whether marijuana use constitutes child abuse or neglect.

The Supremes appear to have started with a conclusion and worked backward. In contrast, the Kentucky Court of Appeals had previously delivered a well-reasoned opinion that engaged with the evidence in a thoughtful and legally precise manner. Let’s take a ride through the twists and turns of this case.

Recap of the Case

The case arose when a School Resource Officer (SRO) at an elementary school claimed he smelled marijuana coming from a father’s car while he was dropping off his child. He also observed smoke in the vehicle and later reported his concerns to the Cabinet for Health and Family Services. A drug test on the child showed exposure to THC, and the Father later tested positive for carboxy-THC, D-methamphetamine, and oxycodone (the latter being prescribed).

Based on this, the Calloway County Family Court found that the Father had neglected the child, leading to a loss of custody and restrictions on visitation. The Court of Appeals reversed, holding that the Cabinet had failed to prove that the child’s exposure to marijuana actually created a risk of physical or emotional injury, as required by Kentucky law.

Then came the Supreme Court, lassoing the case back in favor of the Cabinet and reinstating the Family Court’s ruling.

Court of Appeals: A Thoughtful and Measured Approach

The Court of Appeals’ opinion (previously discussed here on the Round Up posted Feb 23, 2024) reflected a careful analysis of the evidence. Specifically, the Court of Appeals noted:

1. No Direct Evidence of Harm: The Cabinet failed to show that the child’s exposure to marijuana caused actual physical or emotional injury or that there was more than a speculative risk of harm. The Round Up notes that “emotional injury” must be proven by competent testimony by a “Qualified Mental Health Professional,” and no such witness was offered in this case.
2. The Role of Expert Testimony: The appellate court emphasized that no expert testified about the effects of passive marijuana exposure on a child’s well-being, a key omission in proving neglect.
3. Distinguishing Marijuana Use from Neglect: The panel acknowledged concerns about drug use but reminded the lower court that neglect requires a specific showing of harm or substantial risk, not just bad parenting.

Kentucky Supreme Court: Results-Oriented Reasoning

In reversing the Kentucky Court of Appeals, the Supreme Court of Kentucky took a different approach—one that appears to start with the premise that the Father was neglectful and then selects facts to support that view. Classic confirmation bias. Key aspects of the ruling include:

1. Minimizing the Need for Expert Testimony: The Court dismissed the Father’s argument that the Cabinet should have presented expert testimony to establish harm, stating that the combination of marijuana exposure and the fact that the Father was allegedly driving under the influence was enough to infer risk. It is also worth noting that the Father was NOT charged with DUI in this case despite the school resource officer claiming that he saw marijuana smoke emanating from the car. The SRO did not even issue a citation or call the regular police, opting just to fill out a form called a JC-3.
2. Emphasizing Risk Over Actual Harm: While prior precedent had cautioned that a “risk of harm” must be more than theoretical, the Supreme Court seemed to lower that bar here. They relied on evidence that the child smelled like marijuana at school but did not meaningfully engage with whether that alone constituted neglect.
3. Framing the Evidence to Support the Outcome: The Court cited the Father’s positive drug test—though it showed only exposure to methamphetamine, not ingestion—as part of a “pattern of conduct” rendering him unfit.

Comparing the Two Approaches

The Court of Appeals engaged with the nuances of Kentucky’s neglect statute, recognizing that while drug use by a parent is concerning, the law requires more than suspicion to strip custody. Their ruling demonstrated respect for due process and the principle that courts should not impose state intervention lightly.

The Supreme Court, however, seemed more interested in ensuring a particular result. By focusing on the idea that any marijuana use around a child is inherently neglectful—without requiring concrete proof of harm—they expanded the definition of neglect in ways that could have broad implications for future cases.

Final Thoughts

This decision raises serious questions about parental rights and the limits of state intervention. The Court of Appeals ruling recognized that not every questionable parenting decision meets the legal definition of neglect. The Supreme Court’s opinion, in contrast, suggests that once a court is convinced a parent is “bad,” the legal analysis can bend to fit that narrative.

It is worth noting that Judge Goodwine authored the Opinion from the Kentucky Court of Appeals. Now, of course, Judge Goodwine is JUSTICE Goodwine. The newly sworn-in member of the Supreme Court could not participate in the decision on an Opinion that she rendered, but it is interesting that her new colleagues sided against her Opinion.