Utah woman says her legal CBD use has put her at risk of losing custody of her daughters

(Rick Egan | The Salt Lake Tribune) Doug Roberts holds daughter Hannah, as Emily Roberts speaks about her chronic pain, during a news conference. Tuesday, Sept. 10, 2019. Emily Roberts has been threatened with losing her children after testing positive for THC.

Emily Roberts says her body hurts all the time.

Sometimes, it’s a radiating pain that shoots along the nerves in her leg. Other times, it feels like someone is stabbing her shoulder blade, with the pain spreading from that point over the right side of her body.

The Provo woman has found that CBD, a cannabis compound that doesn’t produce a “high,” dulls the sharpest pangs. Except she hasn’t been able to use the substance lately, for fear it will cost her custody of her two daughters.

“I’m being forced to choose between my pain and my kids. This isn’t justice — it’s cruel,” Roberts tearfully explained during a Tuesday news conference.

That’s despite the fact that CBD oil is legal to possess in Utah. And despite the fact that Roberts qualifies as a cannabis patient under the state’s new medical marijuana law.

Cannabis advocates say the situation puts a spotlight on the lack of understanding about Utah’s emerging medical marijuana program, even among government officials and judges. And it’s putting legal marijuana patients in fear of everything from criminal prosecution to losing their job or their children, advocates say.

DJ Schanz, chairman of the Utah Cannabis Association, said the system particularly seems to prey on people who don’t have the money to defend themselves in court.

“It really puts them in a meat grinder,” Schanz said during the news conference at the Utah Capitol.

The medical cannabis law approved late last year does contain criminal protections for patients, but advocates are pushing Utah legislators to beef up these safeguards during this month’s special session. They’re also calling on officials to become better versed in the law.

“It has become very clear that we have people in our state who have not taken the time to really let go of their own biases and educate themselves on the bill that we passed in the Legislature,” said Utah Rep. Christine Watkins, a Price Republican who serves on the Child Welfare Legislative Oversight Panel.

But judges are doing the best they can under the existing law, according to a courts spokesman.

“The Legislature, much like the courts, has discovered a number of unanswered questions regarding this law,” Geoffrey Fattah, Utah State Courts spokesman, said in a prepared statement. “We will be working with the Legislature during Monday’s special session to address these questions and hopefully provide guidance to our judges.”

Fattah could not speak specifically about Roberts’ case, which is in juvenile court and closed to the public.

Roberts said her family’s troubles began last summer when they unexpectedly lost their home and spent several weeks bouncing between hotels and motels, short-term rentals and friends’ houses. On a few occasions, they were forced to sleep in their car.

The housing instability combined with some arguments between Roberts and her husband prompted the Utah Division of Child and Family Services to get involved, and the agency ended up temporarily removing the couple’s two daughters, aged 4 and 2.

While the family was reunited after about a week, the judge supervising the case ordered Roberts and her husband to undergo random drug testing, which she describes as an inconvenient and embarrassing ordeal. She’s faced the testing since last fall, sometimes multiple times in a week.

“We are humiliated every time we do a drug test because we’re required to pretty much get naked in front of strangers and urinate,” she said.

(Rick Egan | The Salt Lake Tribune) Emily Roberts holds a bottle of Endo-C, CBG oil that she takes for her chronic pain, during a news conference. Tuesday, Sept. 10, 2019. Roberts has been threatened with losing her children after testing positive for THC.

Roberts said she’s tested positive for THC, the main psychoactive ingredient in marijuana, because of her participation in a state-sponsored CBD study. While these two chemicals are distinct cannabis components, marijuana advocate Connor Boyack said CBD oil can contain trace amounts of THC, which explains why it showed up in Roberts’ test results.

Roberts has suffered from debilitating pain for the past two decades, since a car accident that left her with extensive nerve damage. A few years ago, she tried cannabis while visiting a friend who lived in a state where the substance was legal and discovered it offered significant relief.

After Utah’s medical cannabis law passed last year, Roberts’ doctors recommended that she try the substance — she even has a doctor’s letter of recommendation that is supposed to act as a legal safeguard until the state begins issuing patient cards.

But neither Roberts’ letter of recommendation nor her participation in a legal, state-sanctioned CBD study has carried much weight with the juvenile court judge involved in her family’s case, she said.

Cannabis advocates point to excerpts from the family’s court hearings as evidence that their judge isn’t aware medical marijuana contains THC and is mistaken about parts of Utah’s new medical cannabis law. An audio clip from the hearing also shows the judge warned her DCFS might decide to remove her children if she keeps testing positive for THC.

Roberts said her family’s living situation has stabilized, and they’ve been attending court-appointed counseling. The drug tests are the only reason the case hasn’t been closed, she said. So instead of taking CBD, she’s been living with pain that puts everyday activities — doing the dishes or taking her daughters to Thanksgiving Point — out of her reach.

“[The judge] is denying me my legal ability to use this medicine and to be a better mom,” Roberts said.

Diane Moore, head of the state’s division of child and family services, couldn’t comment on the specifics of the Roberts’ case but emphasized that her agency does not police parents for their substance use unless there’s evidence it’s affecting a child.

“For us to be involved with a family, there has to be evidence that there’s harm or the threat of harm to the child that exists,” she said. “The substance on its own is not generally enough for us to get involved with a family.”

That goes for illegal substances, as well as legal ones such as prescription pills and alcohol, she said. DCFS officials want to keep children with their parents whenever possible and work to support families to that end, Moore said.

However, both DCFS and the judiciary are continuing to learn about the state’s new cannabis law.

Moore said officials from her agency are meeting later this month with Boyack and medical and law enforcement representatives to discuss the program. This week, the state’s judges are meeting in an annual conference with a training session dedicated to medical marijuana, Fattah said.