Child Protective Services & Family Court: The Last Gasp of the Drug War

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PHOTO: Jonathan Oakley

broken family

PHOTO: Martin Börjesson

What’s worse than going to jail for cannabis?  Your children taken away by child protection services for it.  If you’re incarcerated, you receive a specific custodial sentence — which may be reduced for good behavior or perhaps even commuted — during which you are guaranteed visits with your family.  You can count down to your release, which is guaranteed to occur (at least eventually, although there are collateral consequences of a drug conviction and a criminal record afterwards).  If your children are removed as part of a child protective services (CPS) intervention, they are taken from your parental custody for an indeterminate amount of time, you may or may not get to see or even speak to them, they may fare badly and suffer in care, and they may be gone forever.  If Americans are not careful, the last vestiges of the war on drugs will be fought in our wombs and with our children.

While well-off, financially stable “marijuana mamas” and “pot parents” have gotten a lot of media traction recently, the palpable fear among poor parents of what would happen if they were so open about their use has not.  To those of us heavily involved on the child protection issue and aware of the risk we and others are taking by talking publicly about this, it can be somewhat disconcerting to see a certain class of mothers so brazenly open — as if they don’t even have to think about any possible negative consequences of this publicity to themselves and their families.  It’s a good thing that they’re coming out of the proverbial closet, but they are putting themselves at a risk they don’t fully understand while doing so and unintentionally whitewashing the effect of prohibition on poor parents (especially those of color).

All parents are potentially subject to anonymous child protective reports by any ordinary citizen (like a “friend”, playgroup associate, neighbor, etc) or mandated reporter (such as healthcare, childcare/educational, religious, and social system professionals).  Mandated reporters are people who are or might be around children while doing their jobs, and are required by law to report suspected child abuse or neglect to CPS, with penalties for not doing so ranging from loss of licensure to civil and criminal liability including fines and jail time.  Some professionals may incorrectly believe they’re mandated reporters.  Others may not even have met the child nor seen the parent interact with them before filing a mandated report, such as with self-disclosed cannabis use or reading about disclosure in a patient’s medical records.

Given the nature of mandated reports, it is more likely to be someone of limited means who can’t afford a private school, private insurance and private hospitals, a home birth, or receives public benefits who will be facing such a traumatic intrusion into their family lives.  Public schools are the source of most mandated reports.  Most hospitals are mandated, by state-level misreading of federal law or hospital administrative policies, to report a postnatal mother or newborn screening positive for what is usually worded as “an addictive drug at birth” or being “substance-exposed”.   Those who are already in the system — SSDI/SSI, welfare, employment or independent living rehabilitation assistance — are already under a microscope and have no choice but to interact with (sometimes ill-meaning) government pencil-pushers.  Several studies show that people of color are more likely to be both drug tested and reported to CPS.

People who can’t afford to hire both marijuana and family law attorneys are more likely to have their children taken away, with few choices of marijuana lawyers because most of those deal with criminal rather than civil cases and often have no interest in civil matters or are ill-equipped to work in the highly specialized area of child welfare.  Other aspects of life more likely to be found within the context of poor families such as substandard housing, food insecurity, physical and mental health issues, and a lack of a parental support network all contribute to the marks against them by poorly-trained child protective  caseworkers.


PHOTO: Bridget Coila

Specifically for pregnant women, there is federal legislation to which states (and American territories) agree to participate in order to receive federal child welfare funds.  This is called the Child Abuse Prevention & Treatment Act (CAPTA) and requires providers to report “infants born with and identified as being affected by illegal substance abuse or withdrawal symptoms” as a result of prenatal drug exposure.  Federal law does not define the terms “affected by illegal substance abuse” or “withdrawal symptoms”; nor does it explain the significant difference between being “affected… as a result of exposure” and “exposed.”  In the spirit of bureaucracy, states are not told how this has to be implemented other than that they must have “policies and procedures” in place to notify some service providing agency — not necessarily child protective services — and an “established plan of safe care” for affected newborns.  Some states pass specific laws (at least the ones which didn’t already have them) and some include them in their Child Protection Services written policies or rules and regulations.  This is true even though CAPTA does not direct hospitals to do anything in particular or to define a “drug-affected newborn” as abused or neglected.  To receive the federal funds, a high-up state official merely has to reassure the federal government that they are complying with the Act, and the implementation is up to them.
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