A Provo mom says she and her husband have been told they could lose custody of their children if she doesn't give up medical cannabis.
The couple is receiving help from the pro-cannabis Libertas Institute, as well as the Utah Patients Coalition, who say the judge in the couple's case is running afoul of state law.
"This case presents a total breakdown of the justice system in Utah," said Connor Boyack, who leads the institute.
"And I want to make clear this is not the result of a perfect storm or random circumstances that will never happen again."
Utah's Division of Child and Family services took Emily and Doug Roberts' two children away for about a week in 2018. The couple says they lost their home and were unable to find housing for a while. That instability — paired with "verbal arguments" — led Judge Brent Bartholomew to become involved in their lives.
2019, they say, has been better for their family. Better marriage, more stable housing, but one thing keeps them in and out of court hearings: CBD.
Cannabidiol is a byproduct of the marijuana plant. It typically does not contain THC, the psychoactive ingredient in the plant that gives users a high. Legal in Utah, many people use it to treat pain.
Emily Roberts began using it to treat chronic pain stemming from a car accident.
"When I'm experiencing my worst pain days, the CBD has been the only treatment that has given me the ability to be the mother that my children deserve," she said.
Roberts takes the drug in a pill form. She says she gets it as part of a Utah taxpayer-funded study of CBD.
The Roberts were subjected to random drug tests at the beginning of their time in the system. Emily says her tests were clean until February, after she started the CBD trial.
She says her results came back positive for THC, prompting stern warnings from the court.
"Almost monthly, [the judge] suggests that my children will be taken away again if I continue to have THC detected in my urine," Roberts said.
In an audio recording of a June 17 hearing provided to 2News by the institute, Bartholomew is heard saying, "You shouldn't be using THC. It's against the law."
The Utah Patients Coalition says because CBD and THC come from the same plant, trace amounts of one can end up in the other.
"You can be a legal CBD user and fail a court-ordered drug test," Boyack said.
But even if Roberts was using THC, Boyack says her doctor's recommendation gives her a legal right to that, too.
They say the judge denied the note's legal authority and asked for a formal prescription.
Doctors do not give formal prescriptions for cannabis products as they do for other drugs because of the federal laws against pot, according to the Utah Patients Coalition.
State Rep. Christine Watkins, R-District 69, says lawmakers never intended for something like this to happen.
The law they passed, she says, allows for doctors' notes in place of prescriptions. While the legislation addressed criminal law, she says it largely ignored juvenile court law. She believes lawmakers will act during the special session to clarify their intent.
"A judge cannot be taking children just because a parent is using medical cannabis," she said. "They think it's illegal, and I guess they really haven't researched the original bill."
Watkins, who chairs the Child Welfare Oversight Committee, has personally attended court with the Roberts family. She says she was eager to show them the legislature was engaged with the topic.
"It's become very clear that we have people in our state who have not taken the time... to let go of their own biases and educate themselves on the bill that we passed in the legislature," she said.
The judge in the Roberts' case is not allowed to comment publicly about ongoing cases. The Utah Courts provided a written statement to 2News which says:
"Currently, judges are doing the best they can under the current law. The Legislature, much like the Courts, has discovered a number of unanswered questions regarding this law. We will be working with the Legislature during Monday's special session to address these questions and hopefully provide guidance to our judges."
Court spokesperson Geoff Fattah added that judges will be receiving additional training about new laws this week during an annual conference.