Ridgell v. Ariz. Dep't of Child Safety
| Decision Date | 31 March 2022 |
| Docket Number | 1 CA-CV 21-0069 |
| Citation | 67 Arizona Cases Digest 17,508 P.3d 1143 |
| Parties | Lindsay RIDGELL, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY, Defendant/Appellee. |
| Court | Arizona Court of Appeals |
Law Office of Julie R. Gunnigle, Scottsdale, By Julie R. Gunnigle, Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix, By Sandra L. Nahigian, Counsel for Defendant/Appellee
Law Office of Randal B. McDonald, Phoenix, By Randal B. McDonald, Counsel for Amicus Curiae Hyperemesis Education and Research Foundation
Mesch Clark & Rothschild PC, Tucson, By Jana Lynn Sutton, Counsel for Amicus Curiae National Advocates for Pregnant Women, et al.
¶1 Lindsay Ridgell appeals the Director of the Department of Child Safety's decision to place her on the Department's Central Registry for prenatally exposing her infant to marijuana.The Central Registry is a repository of substantiated instances of child abuse and neglect. The Central Registry is used to determine a person's qualification for employment with a "child welfare agency" or an entity that contracts with the State to "provide direct service to children or vulnerable adults." A.R.S. § 8–804(B)(3), (4). Ridgell argues that the Arizona Medical Marijuana Act ("AMMA"), A.R.S. §§ 36–2801 to –2819, precludes her from being placed on the Central Registry for her medical marijuana use that exposed her unborn child to marijuana.
¶2 The Director erred in placing Ridgell on the Central Registry. A person may be placed on the Central Registry if her newborn infant has been exposed to certain drugs, including marijuana, but only if that exposure did not result from medical treatment administered by a health professional. A.R.S. § 8–201(25)(c). The evidence shows that Ridgell was certified under AMMA to use marijuana medically to treat chronic nausea. The doctor who certified Ridgell's eligibility for using medical marijuana knew that she was pregnant. Because the use of marijuana under AMMA "must be considered the equivalent of the use of any other medication under the direction of a physician," A.R.S. § 36–2813(C), the exposure of Ridgell's infant to marijuana resulted from medical treatment and did not constitute neglect under A.R.S. § 8–201(25)(c).
¶3 Ridgell obtained a medical marijuana card after being diagnosed with irritable bowel
syndrome ten years ago and has used medical marijuana since then. She continued to use marijuana even after she became pregnant in September 2018. The following month, she complained to her doctor that she suffered from anxiety, lack of restful sleep, nausea, and lack of appetite, and the doctor prescribed an over-the-counter sleep aid to help with nausea and sleep and restarted her on anxiety medication. The doctor's records did not show that Ridgell used medical marijuana.
¶4 In November 2018, Ridgell went to an emergency room because of nausea, and a doctor diagnosed her with hyperemesis gravidarum—extreme morning sickness—and prescribed an anti-emetic drug. Emergency room staff documented that she had used medical marijuana in the past and had a medical marijuana card but did not record that she was currently using marijuana. At a follow-up appointment with her OBGYN, her doctor noted that the previously prescribed drug "work[ed] better" for Ridgell's nausea and refilled the prescription. He stopped the prescription after Ridgell improved. Ridgell's OBGYN's records do not show that she had mentioned her medical marijuana use in seeking treatment for her hyperemesis gravidarum.
¶5 Ridgell renewed her medical marijuana card in late December 2018, telling the certifying doctor that she was pregnant. The certifying doctor, Kim Muhammad, identified "chronic nausea [due to] slow gastric emptying" as Ridgell's "debilitating medical condition." As A.R.S. § 13–3620 required, she warned Ridgell that marijuana use during pregnancy might risk being reported to the Department during pregnancy or at the birth by persons who are required to report. Dr. Muhammad then certified that "in [my] professional opinion [I] believe that the qualifying patient is likely to receive therapeutic or palliative benefit from ... the use of marijuana to treat or alleviate the qualifying patient's debilitating medical condition."
¶6 In February 2019, Ridgell returned to the emergency room complaining of nausea and vomiting. The records did not report any medical marijuana use, and the doctor prescribed a different anti-emetic drug than was prescribed the previous November. In March 2019, she visited another doctor for lower back pain. In the records’ "medications to continue section" for that visit, marijuana use was not indicated. In May 2019, Ridgell again saw her OBGYN, telling the doctor she had stopped taking medical marijuana in September 2018, when she found out she was pregnant.
¶7 Two days after seeing her OBGYN, Ridgell gave birth to S.H. A minute after his birth, he stopped breathing and required resuscitation. After exhibiting "jitteriness," he was transferred to Phoenix Children's Hospital and evaluated for a stroke
and neonatal cerebral irritability. The hospital performed a drug test, which was positive for marijuana, Buspar, caffeine, and Benadryl, and diagnosed him with intrauterine addictive drug exposure.
¶8 The hospital consequently notified the Department that S.H. had been born substance-exposed, which constitutes neglect under A.R.S. § 8–201(25)(c) if the exposure was not caused by treatment administered by a healthcare professional, and the Department began an investigation. Once the Department receives a report of neglect, it can substantiate the report if probable cause exists, A.R.S. § 8–811(E), (K) and (M)(2), which means "some credible evidence" that abuse or neglect occurred, A.A.C. § R21-1-501 (13). If substantiated, the neglecting parent is placed on the Department's Central Registry as having neglected or abused a child. Placement on the Central Registry is a factor in determining a person's qualification for employment "with a child welfare agency" or an entity that contracts with the State to "provide direct service to children or vulnerable adults." A.R.S. § 8–804(B)(3), (4).
¶9 Ridgell reported to the Department's investigator that she had a medical marijuana card and used marijuana a couple of times a week to help her with sleep and her irritable bowel
syndrome. She first stated that she had informed her OBGYN that she had used medical marijuana, but later admitted that she had not disclosed her marijuana use to her OBGYN or the hospital. During the investigation, S.H. was released from the hospital and remained healthy: his "jitteriness" was never linked to Ridgell's marijuana use. After the Department completed its investigation, it informed Ridgell that it intended to enter a finding of neglect on its Central Registry for exposing S.H. to marijuana.
¶10 Ridgell requested a hearing, stating that she had a medical marijuana card and used marijuana because of her hyperemesis gravidarum. She argued that AMMA included an immunity provision that protects users from being "subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege" if their use and possession complied with AMMA, A.R.S. § 36–2811(B), and that placement on the Central Registry constituted a penalty. She also argued that AMMA's anti-discrimination provision, A.R.S. § 36–2813(D), modified "neglect" under A.R.S. § 8–201(25), which meant that she could be placed on the Central Registry only if the Department showed that her marijuana use had caused an unreasonable risk of danger to S.H.
¶11 An administrative law judge ("ALJ") conducted a hearing and heard testimony from Ridgell and a Department investigator. Ridgell testified that she had told her OBGYN that she used medical marijuana and that it worked better for her extreme nausea and vomiting during her pregnancy than the prescribed medication. She claimed to have returned to using medical marijuana with her doctor's permission.
¶12 The ALJ rejected Ridgell's argument that A.R.S. § 36–2813(D) modified "neglect" under A.R.S. § 8–201(25)(c). The ALJ found Ridgell credible, however, and found that she had disclosed her medical marijuana use to her doctors and that they had directed that use. The ALJ directed the Department to amend its finding because Ridgell "used medical marijuana under her doctors’ care and according to their instructions during her pregnancy."
¶13 On review, the Director rejected the ALJ's decision, finding that Ridgell's medical records showed that the only doctor she had informed of her medical marijuana use was Dr. Muhammad, whom she saw only to comply with medical marijuana certification. The Director found that Ridgell's marijuana use was not under a doctor's care and that her lack of communication with her treating doctors about her use created an unreasonable risk to S.H.’s health and safety. The Director accordingly substantiated the neglect allegation under A.R.S. § 8–201(25)(c).
¶14 Ridgell sought review in the superior court. The superior court ruled that AMMA's immunity provision applied to Ridgell's entry in the Department's Central Registry because she was a qualified patient, and the entry affected her employability. It concluded, however, that for the immunity provision to apply, a healthcare professional must have administered the marijuana to her. It then ruled that the Director did not abuse its discretion in finding that S.H.’s prenatal exposure to marijuana did not result from medical treatment administered to him or Ridgell and that Ridgell therefore neglected S.H. under A.R.S. § 8–201(25)(c). The superior court rejected Ridgell's argument that AMMA's certification procedure constituted "administration" under A.R.S. § 8–201(25)(c) and...
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