AuthorSmith, Charisa


      Bianca and Tad Snyder raise their young son together, work hard, and play hard as "plant healing" advocates who manage two growing businesses, a community platform, a merchandise line, and more. (8) The Snyders founded the High Society Mama and High Society Papa Instagram accounts to build acceptance of cannabis in broader U.S. culture and among parents. They also run a "boutique hemp farm" in Michigan and a "cluster of cannabis-friendly rentals in Chicago," Illinois. (9) While enthusiastically describing their philosophy on the cannabis industry and parenting in the media, the Snyders remain candid about their struggle to balance responsibilities during the COVID-19 pandemic. (10) Bianca, a self-described entrepreneur "inspiring Cannamoms," confides that "social media is very deceiving." (11) Though her accounts seemingly portray that she has her "shit together," Bianca admits to being a "living breathing hot mess" who simply tries her best. (12) Although the Snyders' home state of Michigan legalized recreational marijuana in 2018, after medical cannabis was legalized in 2008, the couple maintains concerns about being nationally known cannabis advocates when the plant remains federally illegal. (13)

      Cannabis consumption is a means of bonding, wellness maintenance, and even ritualistic elevation for Bianca and Tad. (14) Tad explains that they utilize both CBD (cannabidiol, a cannabis derivative lacking intoxicating psychoactive components, which has numerous proven therapeutic benefits) and CBD/THC blends that involve a "high" traditionally associated with marijuana (with THC being tetrahydrocannabinol--the chemical within a cannabis plant that is primarily responsible for causing an intoxicating, psychoactive "high"). (15) The Snyders grow both hemp and marijuana--two different types of cannabis belonging to the same species, Cannabis sativa, which are nevertheless treated radically divergently under U.S. law. (16) While marijuana has a higher amount of THC than hemp and is thus most targeted for prosecution and enforcement due to its associated "high," CBD products that are derived only from hemp arc federally legal despite the originating Cannabis sativa plant species remaining federally banned in the existing, complex legal regime. (17) Smoking together enables the Snyders to "get a little bit more silly, connect... loosen up," and enhance physical intimacy. (18) The Snyders consider it an honor to help and heal through the cannabis industry and have taught their son to identify "hemp" leaves from the early age of three, explaining to him that it is "only for adults to consume, just like alcohol and caffeine." (19) The Snyders' son helps in the hemp fields as much as in their vegetable garden, and he watches his parents roll joints in a way that is normalized rather than hidden. (20) The couple describes stepping away to smoke in order to reduce their son's exposure to smoke but insist that "it is not with the intent for him not to see us." (21)


      Penelope Harris is a Bronx, New York resident and mother of a ten-year-old son who also stepped up to care for her eight-year-old niece as a foster mom. (22) At age thirty-one, Penelope is in a relationship with her boyfriend and has remained a law-abiding citizen with no criminal record or child protective system contact. (23) After receiving information that drug sales could potentially be occurring at Penelope's home, the NYPD searched her apartment and found less than ten grams of marijuana--an amount below the legal threshold for a misdemeanor at that time, which would have resulted only in the legal equivalent of a traffic ticket. (24) Penelope mentioned that the small quantity of cannabis was for personal use and that neither she nor her boyfriend smoked frequently, and prosecutors thus declined to file charges. (25) However, the police reported the presence of Penelope's son and niece in the home to the child maltreatment hotline and caseworkers from the New York City Administration for Children's Services ("ACS") (26) immediately removed the children in a devastating move to Penelope's family. (27)

      A negligible quantity of cannabis in Penelope's home led New York City caseworkers to file child neglect charges a week later, and a lengthy, traumatic whirlwind of events ensued. (28) While they "investigated" further, Penelope's biological son was returned upon the conditions that she keep her boyfriend from returning to the apartment, that she receive therapy and submit to random drug screenings, and that caseworkers could make unlimited announced and unannounced visits to her residence. (29) Such conditions were imposed despite ACS lacking any evidence that Harris "repeatedly misused drugs" (the scenario legally required for New York to consider a child neglected), despite a lack of evidence that her boyfriend misused drugs, and without any allegations that someone was actually harming Penelope's son and niece in the first place. (30) While Penelope's son returned home from foster care a week after the NYPD first conducted their search, her niece was kept with strangers in foster care for over a year, although Penelope's drug tests never evinced any use of substances. (31)

      When asked about the toll these events took on her, Penelope confided, "I felt like less of a parent, like I had failed my children.... It tore me up." (32) Penelope's eight-ycar-old niece had experienced considerable instability prior to joining Penelope's household from her biological mother's care, and the supposedly protective marijuana investigation forced her to move twice more and spend over a year living among strangers. (33) Ultimately, Penelope's case was closed without any finding of child neglect. (34)

      Considered in comparison, the Snyders' and Penelope Harris' experiences with cannabis, the law, cultural posturing, and parenting evoke the cliche metaphor "apples to oranges," illustrating the extent of variation and disorder throughout U.S. jurisdictions. Countless aspects of these families' experiences are distinct. The Snyders arc prosperous, Midwestern Caucasian-American entrepreneurs. Penelope is a low-income woman of color from the poorest Congressional District in the United States with the highest concentration of people of color. (35) Penelope's case occurred back in 2011, before New York legalized recreational marijuana, and the Snyders' platform proliferated after 2018 when Michigan instituted full legalization. Yet, a current survey of the states yields similarly haphazard examples. (36) Most importantly, the present status quo of clashing cannabis laws assures that the mere mention of cannabis in situations with low-income caregivers of color will most likely warrant child protective scrutiny and intervention regardless of whether the substance is legal, medicinal, or prohibited in that jurisdiction. (37) Meanwhile, non-Hispanic, white caregivers with higher incomes can reap the benefits of legalization and propel a cultural narrative about shedding stigmas, herbal healing, and cannabis' comparative advantages in relation to alcohol use at home. (38) To make matters worse, doctrinal confusion throughout the country assures that parents of any identity group may suffer tragic consequences if a decision-maker in a family law forum considers marijuana to be morally reprehensible and harmful--regardless of the jurisdiction's stance on cannabis legalization. (39)

      This paper asserts that variation in marijuana laws throughout the United States creates an imperative to resolve a civil rights crisis in the doctrinal area of family law. (40) While cannabis' categorization as a federally controlled substance might seem to be a criminal law concern at first glance, law conflicts among states and localities result in both a double-standard and the untenable, generally disparate treatment of caregivers and families with a severe intcrgenerational impact. The locus of disparate treatment can be seen along various fault lines, including race and ethnicity, socioeconomic status, ability status, gender identity or sexuality, and often solely geographic location. As of 2021, only six of the states that have made marijuana legal on some level included "conduct specific" language in their marijuana statutes to prevent a presumption of maltreatment solely for parental marijuana use. (41)

      The status quo patchwork of cannabis laws jeopardizes the fundamental right to family integrity (42) that courts afford to all families because caregivers merit "freedom of personal choice in matters of... family life" as "one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." (43) Family integrity is a factor utilized in the determination of the "child's best interests" in a majority of states, with implications for removal from the home, custody, and termination of parental rights. (44) The Supreme Court clarified this concern in Sanlosky v. Kramer, (45) holding that a state must support its allegations backing termination of parental rights by at least clear and convincing evidence because "the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." (46)

      Ultimately, a blatant zone of over-privilege exists for some caregivers and families who use marijuana, while others have fragmented rights or outright deprivation due to--and sometimes regardless of--their states' marijuana legality. Clashing local, state, and federal marijuana laws compound existing inequities and create a host of new legal conundrums while the cultural stigma surrounding marijuana persists due to federal illegality. Perhaps the clearest example of this over-privilege and rights fragmentation exists in regards to the family regulation (child welfare) system, which is primarily locally and state-run but federally funded and incentivized. (47) Non-Hispanic, white...

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