Can DCF Remove My Children if I Fail a Drug Test for Marijuana Even if They Are in No Physical Harm?

Few things are more frightening for a parent than the possibility of losing custody of their children. If you’ve failed a drug test for marijuana during a DCF investigation, you might be panicking right now, especially if your children are healthy and have never been harmed. The fear is understandable, but it’s important to know that a positive drug test alone does not automatically lead to removal.

Florida law sets a specific standard that DCF must meet before taking a child from their home. That standard involves much more than a single test result. Read on to understand how the process works and what your rights are as a parent.

What Standard Does DCF Have To Meet To Remove a Child?

Per Florida Statutes § 39.401, DCF may take a child into custody when there is probable cause to believe that the child has been abused, neglected, or abandoned, or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment. The statute also covers situations where the child faces imminent danger as a result of one of those conditions.

This is a critical distinction. The law does not say that a parent’s marijuana use automatically qualifies as abuse or neglect. DCF would need to demonstrate that your drug use is actively placing your child in harm’s way. If your children are well cared for and living in a safe environment, a failed marijuana test on its own is unlikely to meet that threshold.

Does It Matter Whether My Marijuana Use Is Medical or Recreational?

This is a question that comes up frequently, and the answer is nuanced. Florida does have a legal medical marijuana program, and qualified patients are permitted to use cannabis under state law. However, no current Florida statute explicitly prevents DCF from considering a parent’s medical marijuana use during an investigation. 

That said, having a valid medical marijuana card may still work in your favor during an investigation. It shows that your use is lawful and supervised by a physician, which can undermine any argument that your cannabis use reflects reckless behavior.

What Happens During a DCF Investigation?

When DCF receives a report and opens an investigation, the agency will assess whether a danger threat exists in the home. It’s worth knowing in advance that DCF cannot force you to submit to a drug test on its own authority. A court order is required for mandatory testing.

However, refusing to cooperate can have consequences in that the judge may view the refusal unfavorably. If you are tested and the result comes back positive for marijuana, DCF will evaluate the totality of the circumstances before deciding on next steps.

In many cases, the agency will implement a safety plan rather than pursue removal. A safety plan might include:

• Completing a substance abuse evaluation
• Participating in random follow-up drug testing
• Attending parenting classes or counseling
• Allowing a responsible adult to monitor the home during the plan period

These measures allow DCF to address its concerns while keeping your family together. Removal is generally treated as a last resort when less restrictive options are not sufficient.

Contact McMichen, Cinami & Demps To Schedule a Free Consultation With an Orlando Family Law Attorney

If DCF has contacted you about a marijuana-related concern in Florida, the steps you take now can have lasting consequences for your family. It’s important to seek legal advice as soon as you possibly can to best protect your rights and interests. 

Contact McMichen, Cinami & Demps today at (407) 898-2161 to schedule a free consultation with an Orlando family lawyer and get started with your case.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803