By Sara Arnold a.k.a. Sahra Kant
Original version published in Mass Grass as “The National Picture.” This version published by Ladybud Magazine as “Child Protective Services & Family Court: The Last Gasp of the Drug War” on November 5, 2013.
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.
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.
What that means is the pregnant woman is often drug tested as a regular part of her prenatal care (arguably without adequate consent) and where a positive result guarantees neonate testing; newborn tests also occur if a mother knows her rights and declines prenatal drug testing with or without disclosure of use, “acts suspiciously” postpartum, and on a supposedly random basis. Overwhelmingly, these tests are given to babies of those of low socioeconomic status, women of color, or similar external factors. Any positive drug test result guarantees substantiation of a child neglect report in the case of a newborn in any state, even though cannabis is not “addictive.” It counts as such thanks to its Schedule I status in the federal Controlled Substances Act. Even if the baby tests negative, a report to child protective services will often still be made if the mother has tested positive at any point during her pregnancy (including early pregnancy, from use before she knew she was pregnant). These negatives may still be deemed worth further investigation for such reasons as the mother was “acting weird in the hospital.” Acting weird? Please alert the media if you can ever figure out what is “normal” behavior after giving birth, future award-winning sociologist. In fact, data from the 1997-2004 National Survey on Drug Use & Health shows that while women may reduce their intake of cannabis when they learn of being pregnant, around 3% continue to use marijuana throughout the duration of their pregnancy. Fear of coercive and punitive child protective services policies dissuades and discourages women from seeking early (or any) prenatal care which would otherwise benefit maternal and fetal health as well as damages the relationship a woman has with her healthcare providers.
The exact terminology used differs by state, but generally to support or substantiate a report means that the allegation of abuse or neglect has been verified via CPS investigation to be accurate. In the case of newborns, a positive test result is often enough to support or substantiate (usually neglect) prior to CPS assessment of any other factors. For older children, support or substantiation is not evenly applied from state-to-state, or even by individual caseworkers in the same state. Support or substantiation of neglect or abuse results in a further determination of level of concern. Usually, this takes the form of terminology like “little to no concern”, “moderate concern”, and “high concern”; there is never the possibility of “no concern” for a substantiated allegation. This means that every positive test will at least result in an investigation and a family being made forever “on the radar” by a permanent administrative record.
It is even common for there to be false positive results on newborn immunoassay tests. One study showed that 47% of these “presumptive” tests — which test for an antibody reaction rather than a chemical one and then if affirmative assume the chemical is there — that showed an initial positive result were incorrect. In another study, even popular baby washes like Johnson & Johnsons, Aveeno, and CVS brand as well as adult products and even hospital gel hand soap regularly cause false positive results for marijuana; there is even a study saying both immunoassay and THC assay tests are unreliable. Chromatography is necessarily to confirm the actual presence of (carboxy) THC, but it is expensive; most hospitals do not confirm the results of presumptive assay tests before filing a mandated report. Thus mothers who do not even use marijuana can face child protective services for it regardless.
Parents who use cannabis can also have false positive results for other drugs they didn’t take. A poppy seed bagel, ibuprofen, cough medicine, or Sudafed can show positives for opiates, barbituates, cannabinoids, and methamphetamines. This even happens to our neighbors to the north: a woman in Montreal, Quebec, Canada was denied her newborn daughter for a week due to a false positive test for methamphetamine, from a drug test given to her baby solely on the basis that she had self-reported and tested positive for cannabis that she had used early in her first trimester, prior to finding out she was pregnant. The US government has extensive standards for its Federal Workplace Drug Testing program, including split samples and confirmatory testing with very specific thresholds and collection protocols. Before denying someone a job, there are strict standards to follow; mothers facing child protection investigations don’t get such benefits.
Medical use is where the class divide starts — but as with everything, does not entirely disappear, given that medical marijuana users are more likely to be noticed by the system. Even in states with existing medical marijuana laws, parents with recommendations and valid cards, and/or who are registered caregivers/cultivators (especially cultivators), find themselves at the short end of the child protection stick. “Patient registries put targets on the back of parents,” says Cheyenne Weldon of Texas NORML and the NORML Women’s Alliance. This is especially true when patient registries aren’t legislated for limited and specific access, such as to confirm patient status, but also to federal agencies, law enforcement officials, and child protective services. Maine discontinued its patient registry due to the potential abuse of the patient reporting system against its residents.
There is almost no provision in state-based medical marijuana legislation protecting parents (and their children) from child protection services. It exists in the medical marijuana law in Washington state, but CPS continues to go after patients’ families. When this has been legally clarified after legislation has been passed, such as by Michigan’s Attorney General in August 2013, protections have been limited by exceptions like “creating an unreasonable danger to a minor that can be clearly articulated and substantiated”. In Michigan, this legal opinion has been taken by their Kafka-esque CPS to mean any medical use in a home where there is a minor.
Investigations are generally done based on allegations of neglect, using misapplication of federal law on mandated reporting, federal Department of Health & Human Services regulations or guidance, state laws covering child endangerment or “drug-exposed children”, and/or written and unwritten state CPS policies & procedures.
“Drug-endangered children” is a reasonably new concept from the mid-2000s. The National Alliance for Drug Endangered Children (National DEC) grew out of collaboratory local DEC efforts between law enforcement, social services, attorneys and physicians. Initially, they existed to raise awareness about and protect children from “hazardous drug environments”; namely, meth labs. They have since expanded to include all legal or illegal drugs of abuse, which they interpret to include cannabis. National DEC defines “drug endangered” to mean “children who are at risk of suffering physical or emotional harm as the result of illegal drug use, possession, manufacturing, cultivation, or distribution. They may also be children whose caretaker’s substance misuse interferes with the caretaker’s ability to provide a safe and nurturing environment.” The organization doesn’t make distinctions between types of substance nor between frequency and manner of use (such as use not necessarily equating to abuse). As a result of having come from the movement to remove children from “meth homes”, they use the term “clandestine labs” to refer to any premises at which any illegal substances are manufactured or prepared. Half the states have their own DEC Alliances. Partially as a result of DEC lobbying efforts and collaboration with lawmakers, as of July 2012, 33 states have the criminal offense of exposing a child to illegal drug activity on the books, and 11 consider exposing children to the manufacture, possession, or distribution of illegal drugs to be child endangerment. “Drug endangered children” can be applied to parents regarding babies and children of all ages. None of these DEC laws are based on any scientific, evidentiary research.
Some states are trying to pass so-called “personhood” laws to amend state constitutions redefining “persons” to include fertilized eggs, embryos, and fetuses which would then be used to apply these “drug endangered children” laws to the unborn. One state, Alabama, judicially re-wrote their DEC law to apply to fetuses from the moment of conception, using the drug endangered children legislation to create a de facto “personhood” law and advance a different political agenda; this is also being attempted in other states. These laws, in whatever form they take, would and do make zygotes — from the moment sperm meets egg — potential victims, their mothers potential perpetrators and their bodies crime scenes, and their relationship with their pregnancies under the auspices of the child protective system..
President Obama’s ONDCP established the Federal Interagency Task Force on Drug Endangered Children as part of the 2010 National Drug Control Strategy. Involved federal agencies include a veritable alphabet soup of acronyms, bringing together such disparate groups as the Department of Homeland Security (DHS), Department of Education (DOE), Department of Transportation (DOT), Office of National Drug Control Policy (ONDCP), and many others. The interagency task force’s first act was to develop and provide DEC training courses for law enforcement personnel, being offered this summer as a part of the 2013 National Drug Control Strategy. It defines DEC to mean “…a person, under the age of 18, who lives in or is exposed to an environment where drugs… are illegally used, possessed, trafficked, diverted, and/or manufactured and, as a result of that environment: the child experiences, or is at risk of experiencing, physical, sexual, or emotional abuse; the child experiences, or is at risk of experiencing, medical, educational, emotional, or physical harm, including harm resulting or possibly resulting from neglect….” As a consequence of marijuana’s illegality at a federal level, this applies to any children living in a home where it is used or grown.
Parents are guilty until proven innocent of the allegations against them. Once they are screened-in by child protective services (or an investigation is immediately initiated without screening) — which generally occurs end of day on Fridays or over the weekend to limit access to possible helpful advocates — an investigation or assessment occurs with warrantless entry to the family home where deeply irrelevant questions are asked, including of any children old enough to privately question, and the child or children are checked for bruises. (To my knowledge, cannabis has never caused second-hand physical bruising. Or, for that matter, first-hand.) The child’s pediatrician will be contacted, and if the parent is a medical marijuana patient their use may be disclosed to their child’s doctor without their consent; a medical marijuana patient will also have their own doctors contacted. Technically, child protection access can be declined, but then CPS can go to a judge or police for access and may go directly to removing children from the home; child protection services do make “emergency” removals with the assistance of police even without the necessary judge’s order prior to, during or after an investigation. Here are four examples of parents who have lost their children to the state due to immediate “emergency” measures being taken:
Fredrica Ballard, a legal medical marijuana patient from Nevada, was arrested on possession with intent to distribute and child endangerment for cultivation in her home where her two pre-teens lived as well as her two adult sons who were also charged. She is a free woman, yet she hasn’t had custody of her minor son and daughter kids for over two years (and they have been moved to Missouri). Based on this arrest long before his child was even conceived, the newborn daughter of Fredrica’s adult son was taken into Nevada CPS custody at birth and continues to be in foster care. “I have done nothing nothing wrong and I am fighting because it’s the right thing to do”, says Fredrica. “My children were taken against their will like prisoners of war. They were happy children in their family home of legal [registered] patients, with a legal grow in a locked grow room. That is not grounds for destroying my childrens’ life.”
In rural northern California, Daisy Bram and her husband Jayme Walsh are legal medical marijuana patients who were cultivating in compliance with Proposition 215. On September 7, 2011, Butte County police officers showed up unannounced and by trespassing to inspect their home grow. The cops agreed they were indeed in compliance with state law and left. Despite this, a SWAT team and California’s child protective services (DSS) came back three weeks later on September 29th to remove their 2 sons into state custody. Daisy was also charged with felony child abuse and misdemeanor child endangerment for breastfeeding by the local District Attorney, Jeff Greeson. California DSS tried and failed to adopt out her children without parental consent. She successfully fought and won all charges and had her children returned to her, only to have the same criminal charges re-filed in March 2012 by the same DA, which continues to wind through Butte County court.
Understandably wishing to start over to the greatest degree possible, Daisy and Jayme moved their family to Tehama County. They welcomed a third little boy into their family in late 2012. In January 2013, CPS once again conducted an emergency removal from the home into state custody. The Tehama County DA Gregg Cohen and Prosecutor Alessio Larabee, filed their own charges for felony child abuse and misdemeanor child endangerment due to breastfeeding — plus felony possession, possession with intent to supply, and cultivation. This time Jayme was arrested as well, including for child cruelty, and almost half a year later continues to languish in Tehama County Jail with no trial held (much less a conviction or sentence) and a prohibitively high million dollar bail. As a likely result of standing up for her rights as a legal patient, Tehama County even took Daisy’s car through asset forfeiture when she was outside the courthouse following a hearing on her case. Daisy and Jayme’s three children remain in foster care and seem to have been subjected to genuine maltreatment; according to Daisy and evident by pictures she took recently during a supervised visit (never unsupervised) allowed by the court, they were “bruised, scratched, angry and not clothed appropriately” (despite Daisy having brought seasonal clothing for her boys on previous visits). Thankfully, they were moved in late May to a couple in Chico sympathetic to Daisy and Jayme, but the children needlessly remain in limbo away from their loving parents and their family home.
Another example are the “Idaho 3”, who at least now have their children back, albeit two of them are still facing criminal charges. Multiple sclerosis patient Lindsey Rinehart, her husband Josh, and friend Sarah Caldwell — all marijuana advocates and activists in Idaho with Compassionate Idaho, their local NORML chapter, and Moms for Marijuana — were on a hiking and camping trip together while their four sons, between the ages of 5 and 11, stayed at the Rineharts’ home with a babysitter. During this time, a report was made by the boys’ elementary school that another child had brought cannabis to school, eaten it and become ill. It did not come from the Rinehart home, but police went to their house and obtained permission from the babysitter to search, when they found Lindsey’s medicine. CPS was called and all the children were subject to an emergency removal from the home and placement in foster care. Sarah’s two boys were returned after a few days, but the Rineharts spent two and a half torturous weeks without their children. Unfortunately, this was predicated on cessation of Lindsey’s use of a well-known treatment for her MS — her symptoms started returning while her sons were still under state control, and continue now unabated — and both Rineharts still face criminal charges. If she or Josh are charged, it is entirely possible they will face new involvement from Boise’s child protection services.
Then there is the nightmare faced by the Hill family. Two-year-old Alex Hill was removed from her loving Texas home after her parents Joshua Hill and Mary Sweeney were accused of “neglectful supervision” for using marijuana in their bedroom while Alex was asleep in her own room. Alex was placed in a home by private company Texas Mentor, the subject of “114 deficiencies or violations” in the previous two years. After her parents demanded a new foster care placement due to signs of abuse they saw during visitation with their daughter, Alex was placed with the Small family by the same for-profit business. Mere months later, Sherrill Small — who with her husband had decided to be a foster parent for a source of income — killed Alex Hill by blunt trauma to the head for the transgression of having gotten herself some food and water. Sherill Small showed no remorse when interviewed by police and has now been charged with capital murder. Alex Hill was happy and safe in her parents’ home regardless of her parents’ cannabis use; now she is dead. All her parents can do is try to obtain justice for the little girl they will never get to see grow up.
Any parent in a position similar to these examples (of which there are many more) would rather be in jail than living with the indeterminate nature of having had child protective services take their children, whom they may or may not get to see or even speak to, who may suffer in foster care, and who ultimately may be lost permanently to state-sanctioned kidnapping or death. Child welfare advocates like the National Coalition for Child Protection Reform (NCCPR) think removing children from the family home for cannabis use is overkill given the nature of the drug in question and a bad idea from the perspective of child welfare given the generally poor outcomes for children in foster care. “The stress any [new or experienced] mother faces… could be compounded by a child protective services worker coming the door, poking and prying into the home asking mom about the most intimate aspects of her life, questioning friends, neighbors and relatives. All because, like a great many Americans, mom smoked pot… the child could be placed at risk of foster care”, says Richard Wexler of NCCPR. “The harm should be obvious: Children traumatized by needless investigations, courts overloaded with ridiculous cases, and in some cases, children even forced into foster care. There’s also the time, money and effort wasted on these cases that is stolen from finding children in real danger… CPS, and judges, need to be far more careful about weighing the alleged harm to the child of staying in a loving home where mom smokes marijuana, against the harm to that child of taking him or her away. [The] heartbreaking truth is that some of these children are no better off in the care of the state than they were in the hands of abusive and negligent parents. So imagine how much worse off the children are when their parents were not, in fact, abusive or negligent in the first place.”
Even in post-legalization Colorado, a medical marijuana user was investigated by the state’s child protective agency. But for her and many like her throughout the US, a neglect allegation at a child’s birth is always supported as valid, even if it is of “little or no concern” and no further action is required. If that is the case, the parent’s name still goes on a central state registry that may be accessed by both DCF and law enforcement — forever. Again, the horrifying implication there is indeed that using cannabis during pregnancy is unquestionably evidence of neglect. This is despite some courts having decided that isn’t the case, such as in DYFS v. A.L. in the New Jersey Supreme Court and Jones v. Jones in New York (the latter of which also ruled that cannabis in the home is not by itself evidence of neglect for older children). Even if the allegation is for an older child and is proven to be entirely unsupported, it is still kept on file at state CPS.
Continued involvement by child protective services in a family’s life is guaranteed if there is any moderate or serious concern, and incidentally, is often threatened by caseworkers in early contact with a parent on their radar. If that happens, CPS forms a “treatment” plan which may include: regular and/or random drug testing, a coerced drug treatment program, coerced prescription medication of the physical or psychiatric varieties, forced cessation of breastfeeding, or forced cessation of cannabis (even if used medicinally) — and the kicker there is that if doing so causes a health crisis such that the pregnancy is put at risk, or causes the parent to be legitimately unable to care for any existing children, that can be considered a breach of the plan. Parents may be forced to attend parenting classes even when there is no evidence that their parenting is impaired, or anger management classes when they express frustration at the unjust interference in their family life. The specter of non-emergency removal always hangs over any parent in these circumstances, who may be considered by the caseworker, at any time, to have failed in their parental duties and in their service plan with child protection services. Anything other than total submission and contrition is considered noncompliance with the plan.
There is no “double jeopardy” in a child protective services investigation. They can and will keep coming for as long as anonymous or mandated reports are made to CPS about the parent, or as long as they keep giving birth in a hospital environment, despite any past allegations of neglect being declared “entirely unsupported” or “supported” (solely because of existent cannabis use and nothing else), but of “little to no concern.” Greater intervention becomes increasingly likely and more intrusive in subsequent cases. Many child welfare departments apply very narrowly or outright ignore highly relevant case law in their own states like In re Drake M in California and the aforementioned New Jersey Supreme Court and the New York cases that, frankly, they should be required to follow — and these states set an example for all other states by the existence of this hard-won case law and the willingness or resistance of child protection services to follow it. Each case worker brings their own attitudes, education (which may not be more than a year-long social worker certification or an undergraduate BA degree in any major plus a 6 or 12 week child protection services training with no social work certification), experiences, and opinions of their direct supervisor and field office; most of them are very young women who are not themselves parents. It is impossible to find out just how much any of these nightmare scenarios are happening. No figures on a federal or state level are publicly available for action taken against families for any drug use, much less narrowing it down to just cannabis, or for any of the stages of child protective services agencies’ activity.
As with most politics, it’s instructive to follow the money. A key piece of context is that it benefits the states financially to conduct investigations, and particularly for state-sanctioned kidnapping, with a cornucopian variety of lucrative financial incentives and one-off payments. States receive a payment from the federal government of matching funds plus bonuses for each child they manage to remove from their loving families, and ongoing funds for foster care and upkeep; the child protective services agency receives money directly from the states. The nuances and vulgarities of complementary and contradictory federal and state law, combined with the lure of federal money — on top of existing infrastructure and wages — creates incentives for mass investigations of cannabis users. The secrecy and stigma behind child protection makes it an easy cash cow and makes easy targets of the millions of cannabis users who have the gall to reproduce.
In all states, sooner or later a child can be adopted out without biological parental consent; some take as little as 12 (non-consecutive months) whereas others take years, often with court dates for the parents delayed until towards the end of this time period. That allows for easier use of a legal facet called “bonding with an alternative caregiver” in some states’ laws that may alone may be used an excuse to permanently remove and withhold a child from their natural parents even if they have complied with the hoops set out for them by child protective services and greatly disrupts family life regardless.
All child protection cases take places in family courts, which are civil courts. Many of the due process protections that apply in criminal court, including the right to counsel and basic procedures, are not automatic rights and may not apply in family court proceedings, unless a parent is charged with felony or misdemeanor child abuse or criminal endangerment (ie, for breastfeeding). Following family court reforms in some states, some do provide public defenders; in New York, they are provided to everyone in family court (including children). In states where no public defender is offered, a family court defendant unable to afford expensive lawyers is forced to go pro se (represent themselves against the state’s attorney). The only option for the child to have public representation is a guardian ad litem, who does not necessarily need to be an attorney and may be working entirely in the interests of the state. Even for those who can afford it, all marijuana law practices can offer are expensive criminal attorneys with little, if any, experience — and often no interest — in this area of civil law. Proceedings are closed to the public and decisions are often unpublished, sealed and confidential, preventing public oversight and accountability.
The citizens of the Commonwealth of Massachusetts, where I live, are far luckier than most. So are New Yorkers, despite appearances. Mandated reporting is not a federal requirement, but implementation of CAPTA’s bribery, DHHS rules and regulations, and a variety of state-based additions to child welfare laws vary from state to state. Even different counties or municipalities in the same state can apply their state’s laws differently. Unfortunately, progressive cannabis legislation in many states makes little to no difference. They can even go backwards — there are an increasing number of states whose professional pediatrics associations are advocating a restriction on medical marijuana patient qualification for pregnant and breastfeeding women. In Arizona, the APA’s state chapter is trying to add a requirement for women to be asked if they’re pregnant, take pregnancy tests prior to receiving their medical cannabis recommendations, and be denied them if they are pregnant.
Even with the disastrous results of being both a parent and a cannabis user in the states which have passed progressive legislation, they tend to be better off than those states which have not. In Texas, Alabama, Mississippi, Oklahoma, Ohio, North Carolina, South Carolina, Idaho, Nevada, California, Florida, and more, parents — particularly women, especially those of color — are facing state-sanctioned kidnapping at initial investigative stages]. Here’s a little-known and never-discussed fact for you about welfare drug testing: a positive result equals an instant report to child protective services, which in the case of states like Florida, is easy given that Florida’s child protection agency, DCF, is the administrator of the TANF cash benefit welfare program.
States have attempted all manner of legal gymnastics to criminally prosecute women who give birth to babies who test positive for drugs, relying upon laws that create a separate legal status for the unborn to argue that mothers who use criminalized drugs commit crimes against their own children. These laws — part of the so-called “personhood” movement existing to pose a challenge to Roe v. Wade — make fertilized eggs, embryos, and fetuses count as individual people with their own separate rights. Some states have attempted to charge women with “delivery of a drug” through the umbilical cord. Others have attempted to use charges of “corrupting another with drugs” (forcing or coercing someone to take a drug). Tennessee continued to charge women with assault of their unborn children for a full two years after the law was twice amended to make it clear that it was not intended to be used that way. Mississippi now stands to become the second state where women can be charged with homicide if they lose a pregnancy and test positive for a criminalized drug.
These and other states prosecute women who test positive for marijuana during pregnancy. In fact, prosecutions for women using cannabis while pregnant are already happening on a regular basis in Alabama. As I mentioned earlier, they have judicially modified state law to apply “meth house” drug endangered children legislation that was supposed to protect children from being in homes used as crystal meth labs; with these chemical endangerment cases, the mother’s womb itself is being treated as the inhospitable and dangerous environment akin to said lab. As the law now includes fertilized eggs, embryos, and fetuses, such that a woman who tests positive for cannabis at any point in pregnancy, whether or not she knows she is pregnant yet, could be immediately arrested for the felony of exposing a zygotic “child” to an “environment” (that is, a woman’s body) where it may come in contact with marijuana. Women have already been arrested for delivering babies who tested positive for cannabis at birth.
District Attorneys in many states also criminally charge with child endangerment mothers whose babies test positive after birth or who themselves test positive while breastfeeding. It is certainly possible that a woman who tests positive for cannabis after a fetal demise, and/or whose late-stage miscarriage or stillbirth is tested, could also be charged with reckless criminal endangerment, manslaughter, or even murder. Marijuana activists should not be lulled into a false sense of security by the harmlessness of cannabis — many of the drug war myths upon which the prosecutions of women using cocaine were based have been just as roundly debunked as “reefer madness”.
In addition to the involvement of child protective services and ultimately family court in the lives of non-neglectful parents, cannabis is also a disastrous issue in wider family court matters. A parent in a divorce or other custody case who uses marijuana can and often do have that fact used against them by a parent who does not. Cannabis use — including that which is clearly medical — can and does trigger penalties of financial child support, being limited to supervised (versus unsupervised) visitation with their children, loss of custody, or complete loss of parental access. Family court can make its own “treatment plan” for a cannabis-using parent and punish them for non-compliance. Marijuana use by a parent can require negotiation and compromise even where domestic violence is present to avoid greater risk or demands put upon the parent by a judge (or a report to CPS).
All this, despite a substantial amount of scientific evidence showing its folly. Dr. Melanie Dreher‘s controlled, longitudinal study on cannabis-using pregnant women in Jamaica, is the most mentioned in this field and shows that there is no difference in offspring (except children of mothers who used cannabis while pregnant were slightly smarter). But it is not the only one. Many studies have shown the presence of endocannabinoids in breast milk are an integral part in the growth of the gastrointestinal system (which have endocannabinoid receptors, as many as the brain, stimulating appetite and digestion . Likely because of those cannabinoids, a study accidentally discovered the possibility that cannabis use may reduce infant mortality and treats Failure to Thrive as well as stimulates infant brain development. The Netherlands, New Zealand/UK and three separate US studies, including one by the CDC have all shown that that cannabis does not cause a risk of perinatal death, a need for special care, premature labor, placental abruption, or reduced birth weight. A Canadian study showed that growing up around cultivation did not affect children. A British longitudinal study shows no increased risk of psychosis-like symptoms to adolescents who were exposed to cannabis in the womb. Marijuana has been used for thousands of years in prenatal treatment and childbirth especially for hyperemeis gravidum (severe morning sickness).
I’m the first to admit these and the offline database of evidence-based scientific studies compiled by JD/MPH student Jess Cochrane is not enough to be fully conclusive. I’d love to see more controlled, longitudinal, peer-reviewed studies in this area. Unfortunately, such studies are blocked by the National Institute on Drug Abuse (NIDA), whose public stance is not to fund studies that propose to research benefits of cannabis. However, what we do know definitely is that the effect on parents and children of child protective services and family court is much greater than any perceived risk to a fetus or child. We also know that the presence of cannabis use does not equal abuse, addiction or dependence. We know that whether a person is a good parent or not has no correlation to whether they use marijuana medically or recreationally. As Dr. Peter Fried, the leading researcher on the effects of social cannabis use, wrote in an affidavit for a South Carolina CPS case: “Based on my 30 plus years of experience examining the newborn, infants, toddlers, children, adolescents and young adults born to women who used [marijuana] during pregnancy it is important to emphasize that to characterize an infant born to a woman who used marihuana during pregnancy as being ‘physically abused’ and/or ‘neglected’ is contrary to all scientific evidence (both mine and subsequent work by other researchers). The use of marijuana during pregnancy . . . has not been shown by any objective research to result in abuse or neglect.” Clearly, this lack of effect is true for older children as well.
Given Colorado DHS is still going after medical marijuana patients following the passage of Amendment 64, they will undoubtedly go after parents who choose to use recreationally as well. In fact, the report released by the Task Force, about which I’ve written extensively, contained several worrying parts in their suggested implementation for legalization that are directly aimed at pregnant women and parents. These were passed into law by the Colorado legislature as part of their omnibus regulation bills. The process and the outcomes are likely to be replicated in other states unless direct action is taken to prevent it.
Part of the reason why medical, decriminalization and even legalization changes nothing is the lack of attention paid to this issue by marijuana policy organizations. It is often marginalized or seen as unimportant or “fringe.” “Child protective investigations and removals have received very little attention in drug policy reform efforts, which have focused primarily on challenging the criminal justice responses to drug use,” states Farah Diaz-Tello, staff attorney at National Advocates for Pregnant Women (NAPW). Organizations like NAPW and their legal staff, or individual child welfare organizations, are far more likely to be intimately involved in advocating for change and intervening directly in cases of those in the midst of being persecuted than cannabis reform organizations. Indeed, those that are writing laws for changes in cannabis policy ought to include specific provisions protecting those users from investigation by child protection services or other interference by family courts — but depending on the date of this article’s publication, in 19-21 states and Washington DC with medical marijuana, 16 or 17 with decriminalization, and 2 with legalization, this has never occurred.
In recent months, persecution of cannabis-using pregnant women and parents has increasingly been covered in all kinds of mainstream and alternative media. When a parent using cannabis in front of their child is brought up, representatives of marijuana policy organizations are always quick to clarify that it is inappropriate and unacceptable. I do not condone use in front of progeny. But it doesn’t make sense that this is the only medication a patient shouldn’t take in front of their kids. Moreover, if legalizers really want marijuana to be treated like alcohol, how can it possibly be a serious problem to enjoy a toke but totally fine to relax with a glass of chardonnay in front of the kids at the end of a long day? I have also heard statements from reformers implying that parenting is worthy of judgment if cultivation occurs in the home, even if locked away, despite all existing evidence that there is no effect on children and zero chance of overdose or death. As Ricardo Cortes says in the title of his awesome children’s book, it’s just a plant. (One worthy of harm reduction like recommending pregnant women and parents vaporize or eat their marijuana instead of smoking it.)
There may be an understandable sense of risking cannabis’s newfound popularity at a delicate and crucial time. I get this, but if there is already pushback from drug warriors regarding pregnant women and parents, it will be what they go after with the increased liberalization of marijuana laws, and will continue long after legalization — as their last stand and last push for relevance — if they are not stopped by reformers. This can already be seen in the advent of “drug-endangered children” propaganda and in the work of disingenuous and fake “third way” of anti-marijuana crusader groups like Patrick Kennedy, Kevin Sabet, and David Frum’s Project SAM. Education and work to raise public awareness, along with making this issue a priority in organizational agendas, are necessary to remove the secrecy around child protective services involvement as well as de-stigmatize use by pregnant women and parents just as cannabis reform organizations have worked so tirelessly to destigmatized cannabis use since the days of reefer madness. For obvious reasons, parents who have been at the sharp end of child protective services are understandably wary of coming forward. Very few do. However, it is crucial in fully ending prohibition that they — like all parents — come out of the closet, being welcomed and supported in doing so by cannabis reform organizations.
There is almost no recourse for mandated reports made to harass or retaliate against a family and none against those who erroneously believe themselves to be mandated reporters and who may not even have met nor seen the parent interact with their children. There is almost no recourse for a false positive immunoassay test which has led to a mistaken investigation. There is no recourse for an ex-spouse using an irrelevant non-factor in good parenting to play dirty in a custody battle. There is almost no recourse for trumped-up fetal or child endangerment charges. There is no recourse to this being a facet of the new Jim and Jane Crow. It is a certainty to say there is little or no recourse for any of this; that parents who use cannabis for any reason and their children are completely at the mercy of the unyielding bureaucracy absent any judicial, legislative or political will to require change.
But all is not lost. The movement toward medicalization, decriminalization, and legalization is what shows us that the political process can yield change and their passage is necessary to protect pregnant women and parents. Some examples of various ways to fix this problem: individual or class action litigation against a state actor that would change current law and practice by providing new precedent in each individual state or on a federal level, executive order from President Obama, voting out elected judges from their posts for penalizing cannabis users, changing federal law (like CAPTA or marijuana’s Schedule I status), modifying DHHS regulations, giving appropriate guidance from a harm reduction perspective to pregnant and breastfeeding women, and educating healthcare providers about the true benefits and risks of cannabis (avoiding unduly treating pregnancy or breastfeeding as contraindications and mothers of infants as a separate class of medical marijuana patients).
As the push for greater political and societal acceptance for cannabis successfully progresses, parents must be at the forefront of the marijuana movement and pregnant women cannot be treated as a token to be traded for recreational use among people who look like the people who make the laws. All states which have passed progressive cannabis legislation need to be pressured to remove, edit or clarify provisions of their mandated reporting laws. When changes to state laws occur by ballot initiatives, the authors must ensure a provision protecting pregnant women and parents is in the text that is approved by the voters. As constituents, we must ensure that when our federal, state and local legislators craft or sponsor marijuana-related legislation, they hear from us how they can truly help protect families by including a provision on child welfare, ensuring that no pregnant woman or parent will face interference by a child protection agency or family court solely on the basis of cannabis use. This must be a central and mainstreamed part of marijuana activism and advocacy; it can’t be an afterthought.
If we work together, each one of these fixes that stacks upon each other will ultimately mean no parent is left behind when the prohibition of cannabis is relegated to the trash bin of history.
Full disclosure: for me, this is my professional life’s work and my personal mission. I am a cannabis activist and advocate as well as a (legal in the Commonwealth of Massachusetts) medical marijuana patient with two children under the age of three. I have been the subject of four mandated reports resulting in three investigations for my use and am extremely thankful that has been the limit of my own experience. If any of this article resonates with your own history and experience with child protective services and/or family court and you want to leave the proverbial closet behind, you need non-legal advice and advocacy or legal referral, please look at Family Law & Cannabis Alliance & please don’t hesitate to get in touch with me. I would also love to hear from otherwise interested parties such as parents who haven’t faced any of this but feel impacted in your access to services to which you would otherwise be eligible if these risks to your parenthood didn’t exist, those over 18 whose parent was investigated when you were a minor, cannabis or family law attorneys, workers in nonprofits or NGOs in this field, current or former law enforcement officials, court officers, social workers, and child protection officials. Confidentiality assured.