By Sara Arnold a.k.a. Sahra Kant
Originally published in Mass Grass.
Picture this. You’re celebrating your state having legalized marijuana; perhaps you’re in Massachusetts circa 2016. Medical cannabis was legalized years earlier and decriminalization years before that. “The war on cannabis is over”, you think to yourself as you straighten your party hat and inhale deeply on your Kush, “we’ve won.”
Then you get a call from the Department of Children & Families (DCF), Massachusetts’ child protection services, that you’ve been reported to them anonymously for marijuana use and you’re going to be immediately investigated for neglect of your child. Meanwhile, your friend just gave birth in a local hospital after having been honest about her medical use and like everyone else was drug tested throughout her prenatal care; she’s also going to face a neglect investigation by DCF.
This is not some horrible dystopia of a state agency run amok. This is the present and the future of the war on marijuana — where despite decriminalization, medicalization and even legalization, being a pregnant woman or a parent in this country and in this state makes you a second-class citizen. Being called Mom or Dad makes you the only ones left who face criminal or civil consequences for cannabis use.
In Massachusetts, according to a social worker at a hospital in metro west, DCF receives hundreds of cases a week solely involving cannabis use and that makes up the top reason for their overall cases. Decriminalization means this should not be happening at all — possession of less than an ounce, including within one’s bodily fluids, is supposed to result in no imposition of “any form of penalty, sanction or disqualification” by any of the Commonwealth’s “agencies, authorities or instrumentalities”. There is supposed to be no “other form of criminal or civil punishment or disqualification” beyond a $100 fine (or more in some municipalities, thanks to state AG Martha Coakley) and the forfeiture (boo) of the marijuana. It’s even mentioned in the actual text of Section 32L that possession of one ounce or less does not “disqualify an offender from serving as a foster parent or adoptive parent”, of which DCF is also in control. These are clearly stated as examples rather than limitations, so it should also apply to biological parents… but in practice, it does not.
The vulgarities of federal and state law combined with the lure of federal money in the form of matching federal funding results in the mass investigation of both medical and recreational users. Coming to the attention of DCF happens in one of the three ways: receiving prenatal care from and giving birth in a hospital, a report of potential child abuse or neglect made by mandated reporter or someone who believes themselves to be a mandated reporter, or an anonymous report to DCF’s toll-free number from anyone a parent knows who might hold a grudge against them.
After being drug tested during her pregnancy with inadequate if any consent even if she self-reports her cannabis use, federal legislation and federal DHHS regulations demand mandated reporting by the hospital nursery of any mother of any newborn who tests positive for “physical dependence upon an addictive drug” at birth. Cannabis is in Schedule I of the Controlled Substances Act and is thus considered “addictive” in this context despite there being zero chance of physical dependence. (In fact, hospitals in Massachusetts report any mother who tests positive during her prenatal care, even if the child tests negative in the hospital, and they “randomly” drug test babies whose mothers did not test positive during her prenatal care. “Randomly” meaning based on government insurance, race or similar factors.)
With an older child DCF intervention can occur at any time. Anyone can report suspected abuse or neglect to DCF. Certain professionals with access to children are “mandated reporters”, and have a legal obligation to report. This includes health professionals, law enforcement, educational professionals, religious professionals, firefighters, and social system professionals. Examples include your primary care doctor or therapist, policeman who cautions you for possession, your child’s teacher, your family priest, or your independent living case worker. There is no mention of parental drug use regarding non-newborns in the law governing mandatory reports; nevertheless it is given in DCF training or simply assumed that parental drug use of any kind, including marijuana, is a cause for report. There are other people who erroneously believe that they are mandated reports and will make an official report despite never having met nor seen the parent interact with their children, such as case workers at state employment assistance agency Mass Rehab. Then there are people like an ex-spouse or ex-landlord. Anyone can turn a family’s world upside down at any time, and there is almost no recourse for reports made to harass or retaliate against a family.
After a report is made, DCF then decides whether to “screen-in” the mother (or with an older child, the father, though mothers are reported more often). Sometimes they call first, asking questions such as “Have you ever smoked marijuana?”, a question that would make most of this country — including President Obama — at risk of a child services visit. These calls always take place at the end of business day on Fridays or over the weekend to limit a parent’s access to helpful advocates. Recently, Massachusetts has instituted a two-pronged approach of either assessment or investigation if a mandated report is screened-in, which seems to make these phone calls less likely. In the cases involving newborns, the result is always investigation. As above, although DCF does screen-out some of the cases where the child tests negative in the hospital, they can and do screen in for such reasons as the mother was “acting weird in the hospital.”
Investigations are full-blown matters with deeply irrelevant intrusion into all aspects of a person’s lives from family history to socioeconomics to mental or physical health issues to sexual history. Assessments are somewhat less so in that they largely stay on the topic at hand (beyond checking the child for physical abuse and a tour of the family home). In both cases, they will want to talk to any children in the home privately if they are old enough, will contact the child’s doctors, and if the mother alleges she is a medical cannabis user they will also contact her doctors. This is mortifying and can be extremely traumatic. Each case worker brings their own attitudes, education (which may not be more than a year-long social worker certification) and experiences and most are very young women who are not themselves parents.
After waiting anxiously for about two weeks, the parent will receive the results. If the child is not a newborn, the neglect allegation may be deemed either unsupported or supported. If it is supported, it may be considered of “little to no concern”; in either unsupported or supported, the case will then be closed but kept on file. Unsupported still does not necessarily mean that the abuse or neglect did not occur according to the state’s mandated reporter guidance brochures. With a newborn, the mandated report is always supported and the best possible outcome is to of “little to no concern.” Yes, the horrifying implication there is indeed that using cannabis during pregnancy is unquestionably evidence of neglect.
Continued involvement by DCF in a family’s life is guaranteed if there is any greater concern than above and, incidentally, is often threatened by a case worker in early contact with a parent on their radar. DCF forms a “treatment plan”, which may include: regular and/or random drug testing, a coerced drug treatment program, forced cessation of cannabis (even if it’s used medically) which if doing so causes a health crisis such that the pregnancy is put at risk and/or a parent is then legitimately unable to care for any existing children can be a breach of the plan, coerced prescription medication (physical or psychiatric), forced cessation of breastfeeding (a horrible choice if between medication and feeding an infant naturally) and removal of children from the home which can be on an emergency (ie immediate) basis. Children in foster care can be adopted out without parental consent if they’ve been in DCF custody for twelve of the previous fifteen months if over the age of four, or for at least six of the previous twelve months if under the age of four. These time periods can be non-consecutive. “Bonding with an alternate caregiver” (eg foster / prospective adoptive parent) can be used as the singular reason to allow adoption without the consent of the biological parents to go ahead.
Technically, case law on the Massachusetts books from 1997 involving parents with a cocaine habit, Katharine & another, provides that parents whose drug use is the only reason for DCF intervention may not have their children adopted out without parental consent. Does that mean it no longer happens? Unknown, since no figures are publicly available for actions DCF take against families for any drug use, much less narrowing it down to just cannabis. The same case law also disallowed DCF from substantiating neglect solely on the basis of illegal drug use. However, substantiation of neglect for marijuana can and does lead to removal of children from non-neglectful and non-abusive homes even though removal is only supposed to happen in cases of clear and serious abuse that is likely to continue.
It is also true that a parent can technically decline DCF warrantless access to their home, themselves and their children but that can be like kicking a beehive: they can and do go straight to emergency removals with the assistance of police even without a judge’s order (which they are supposed to have) prior to, during or after an investigation. Parents are denied many of the due process protections guaranteed in criminal courts, because child welfare proceedings are civil matters and are heard in family courts. The right to a speedy trial is denied as cases are delayed as long as possible; sometimes these delays separate families for the time necessary to adopt without consent. There is no guaranteed entitlement to legal representation if you can’t afford an attorney… and all “marijuana law” practices can offer are expensive criminal attorneys with little if any experience – and often no interest – in this highly specialized area of law. Proceedings are closed to the public, and are often sealed and confidential, preventing public oversight and accountability. There is also no guarantee against double (or triple or quadruple) jeopardy, so DCF can keep coming after the same parent(s) solely on the basis of their cannabis use, with intervention becoming increasingly likely and more intrusive in subsequent cases even by DCF’s own admission in the last (irregular) report that they released.
The nuances of contradicting federal and state drug laws as well as mandated reporting legislation and DHHS regulation gives the plausible denabiity of a grey area where the pencil pushers can be “just doing their jobs” absent any judicial, legislative or political will to require change. This is all very lucrative for the bureaucracy. Everything from initial assessment or investigation to fostering and adopting out involves lucrative financial incentives. DCF receives funds from the federal and state government; the state is awarded money from the federal government. These include ongoing and large one-time sums, plus all the infrastructure and wages. The secrecy and stigma behind child protection makes it an easy cash cow and makes easy targets of the many millions of cannabis users who have the gall to also be parents.
Presently, only home-based prenatal care and a home birth, which are not covered by most insurances and thus generally only available to those with substantial financial means, generally avoid DCF for a newborn. Homeschooling and otherwise staying “off the grid” is often used as the antidote to DCF by parents of older children, but has its own practical limitations and is not fail-safe; indeed, these safety measures may trigger DCF investigations. None of these lifestyle choices should be necessary to keep a family safe from those who are meant to be protecting them.
So how can we avoid the nightmare scenario I described at the beginning of this article?
First, we start now. DCF already cannot be allowed to continue the persecution of pregnant women and parents solely for cannabis use in this Commonwealth based on decriminalization and medicalization; this needs to be challenged. Litigation that would change current law and practice by providing new precedent does not seem to be forthcoming. But as medical marijuana laws have been passed in 18 states and decriminalization in 14 (and counting, against federal law), including Massachusetts, these states like ours could remove, edit or clarify provisions of the state’s mandated reporting laws.
Individuals can make a difference. There is a critical opportunity to tell DPH within the public comment period and and in public hearings later that there shouldn’t be any restriction on patient qualification or guidance for pregnant or breastfeeding women, and thus to ensure the strength of the medical law for all Massachusetts citizens. If your elected state senator or representative might sponsor legalization, you can let them know how they can help protect families by including a provision on child welfare. Just as we have worked so tirelessly to destigmatize cannabis use since the days of “reefer madness”, we must also destigmatize parenting for medical and recreational cannabis users. Parents who have faced DCF for their cannabis use need to come out of the proverbial closet, and we must welcome and support them in doing so. We need to take full advantage of any relevant changes in the federal landscape. For any of that to happen, local (and national drug reform organizations) need to make this a priority. This topic needs to lose its stigma among even my fellow drug reformers. I would prefer to not go it alone.
Still, while that would protect some parents who would fall foul of DCF despite existing laws, it would not protect all of them (potentially even medical cultivators if national child protection activity is any guide, but more on that later). In 2016, we need to ensure that we are not leaving any parents behind as we celebrate ending prohibition in the birthplace of the United States. The actual text of the law must include that no parent will face interference by child protection agencies or family court solely on the basis of marijuana use. If this occurs, our state would become the gold standard on this — and it would have a knock-on effect to other states.