Cannabis Conundrum

A mom with a medical marijuana card defeats state officials who put her on a child-abuse registry, but an appeal is possible

A woman who was put on the Arizona Department of Child Services Child Abuse Central Registry because she used cannabis while pregnant thought she had finally defeated state officials in the Arizona Court of Appeals, but the Arizona Attorney General’s Office may still take the case to the Arizona Supreme Court.

The case that garnered national attention last summer concluded on March 30. Should the verdict stand, it would represent a big win for cannabis enforcement and could serve to rein in the state’s pursuit of parents who legally use medical marijuana.

But DCS and the AG’s office have until April 30 to make a final appeal.

“At first, I was super excited about it,” said Lindsay Ridgell, the woman who took on DCS. “But now, the more people are talking about it, the reality of the fact that they might make an appeal is on my mind.”

Ridgell’s story began in September 2018 when she became pregnant with her first child, Silas, whose last name is being withheld by request. At the time, she was a DCS employee and had worked as an investigator for the department for three years, performing in-home case management.

The pregnancy was rough on Ridgell, who suffered from a condition known as hyperemesis gravidarum (HG), which is marked by severe nausea and vomiting throughout pregnancy.

HG is a potentially debilitating condition that can lead to severe weight loss, malnutrition and dehydration and cause long-term health issues for both the mother and the baby.

Her doctors prescribed a number of medications to treat the resulting anxiety, nausea and insomnia, but Ridgell was only able to find relief through cannabis.

During her pregnancy, Ridgell was hospitalized twice, receiving additional prescriptions from her OBGYN for medications. In May 2019, she gave birth to her son.

There were medical issues with Silas from the beginning and after he was transferred to Phoenix Children’s Hospital for evaluation, blood tests found he had several prescription drugs in his system, including Buspar and Benadryl, prescribed to Ridgell by her doctors. His blood also tested positive for marijuana. The child was immediately diagnosed with intrauterine addictive drug exposure, which was reported to DCS.

At the end of May 2019, DCS informed the new mother that she was being placed on the registry.

As a result, Ridgell’s life was turned on its head. She had trouble finding employment and her life has been in limbo as the cases made their way through the courts.

“She became pregnant, went to renew her card and told her qualifying
physician that she was pregnant,” said Scottsdale attorney Julie Gunnigle, who defended Ridgell in the appeal. “HG is a very severe form of nausea, where you basically throw up for nine months. It was literally only cannabis that saved her kid’s life because one in three pregnancies end up with a miscarriage when you have HG.”

In February 2020, an administrative law judge found that most of DCS’s evidence was “double hearsay,” and “was not the kind of evidence on which a reasonable person would rely.” The ALJ directed DCS to amend its previous finding as “unsubstantiated,” thereby removing Ridgell from the registry.

But DCS refused to comply, claiming Ridgell had neglected the child by exposing him prenatally to cannabis that “was not the result of a medical treatment administered to the mother or the newborn infant by a health professional.”

A judicial review of the case in Maricopa County Superior Court upheld the DCS decision, which led Ridgell and Gunnigle to take the case to the Arizona Court of Appeals to determine “whether the administrative action was illegal, arbitrary, capricious, or involved an abuse of discretion.”

Ridgell, who has suffered from irritable bowel syndrome for the past 12 years, received her medical marijuana certification in 2010 as part of the first wave of medical patients in the state.

“I was one of the original cardholders,” she said. “I’ve had it since we didn’t have dispensaries or anywhere you could legally purchase your medication. It’s the only thing that really helps me.”

Records were not clear as to how much knowledge Ridgell’s OBGYN and other doctors had about her cannabis use, although when she renewed her MMJ certification she informed her qualifying physician that she was pregnant.

Yet two courts found the laws established and memorialized in the Arizona Medical Marijuana Act of 2010 to be decisive and the DCS director erred in putting her on the registry.

“I think it’s really important that people understand what this ruling means and how wasteful DCS, and by extension the Attorney General’s office, has been in even pursuing cases like this,” Gunnigle said.

Judge Randall M. Howe, who oversaw the appeal, agreed and in his findings ordered DCS to remove Ridgell from the registry.

In his decision, Howe wrote, “marijuana use authorized under AMMA ‘must be considered the equivalent of the use of any other medication under the direction of a physician.’ Thus, by definition, using marijuana under AMMA is medical treatment ‘administered’ to Ridgell by a health professional. Taking marijuana as [her qualifying doctor] authorized is the same as taking any other medication ‘under the direction of a physician.’ Contrary to the [DCS’s] findings otherwise, whether any of Ridgell’s other doctors knew she was taking medical marijuana for her chronic nausea—and any dispute about that fact—is irrelevant.”

According to Gunnigle, who is running as a Democrat for Maricopa County Attorney in a special election to replace Allister Adel (who resigned last month), the ACLU recently completed a public records request that found some “startling facts” about appeals related to the registry.

From 2016 to September 2021, there were 1,423 cases where parents requested hearings for being placed on the registry. Of those hearings, the most common outcome was failure to appear. Of the cases heard, only “50 or 60” went to a hearing and the majority of them ended with “credible findings of neglect,” although Gunnigle believes that is because the deck is stacked in favor of DCS.

“People understood that they could request a hearing but didn’t understand how to get good legal representation, or the process scared them off,” Gunnigle said. “So, many of them failed to appear for their hearings.”

Cannabis advocates watching this case believe it sets precedence to interpret the AMMA in favor of patients, but Sonia Martinez, the Phoenix attorney who initially represented Ridgell, thinks the matter is not settled.

Martinez is working on a similar case, one she believes is more clear-cut than Ridgell’s, but on Monday she was informed to prepare to defend it, even though she thought it would be suspended in the wake of the Ridgell decision.

“DCS does not think that [the Ridgell] ruling is what it is,” Martinez said. “My take is essentially if you have your medical marijuana card, you’re essentially protected, but DCS, at least according to their response, doesn’t think so. It’s frustrating for me as an attorney.”

Gunnigle believes the fear of being placed on the child-abuse registry could lead women, particularly women in underserved communities, to forgo prenatal care, leading to a “public health nightmare,” endangering the lives of both the mothers and their unborn children.

“I’m glad Lindsay took this case,” she said. “To my knowledge, this is the first instance where there is a Court of Appeals win on a central neglect registry case in a very long time. This is the first case to interpret the immunity portions of AMMA.”

Should the AG take the case to the state Supreme Court, it would be up to the court’s discretion on whether to hear it. Gunnigle says there is a high bar for it to advance, but nothing is guaranteed.

“I imagine there’s a lot of attorneying going on right now behind the scenes,” she said. “It’s very rare that people announce they’re taking cases to the Supreme Court. I know, that happens in the movies, but that doesn’t happen in real life.”

As to Ridgell, who is not even sure she has been removed from the registry, she and her family are nervously awaiting the April 30 appeal deadline so she can pick up the pieces of her life and move on.

Her son is healthy and will celebrate his third birthday next month. She hopes to become more active in advocacy for people who are put on the registry, but her career at DCS is definitely over.

“I’m not sure I could ever go back to work for DCS, just morally, now that I’ve had a kid,” she said. “Everything’s different, and their policies and procedures are not something I feel like I could work with.”

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