ADRIENNE ADAMS:  Fears ‘systemic criminalization.’

City Council Members questioned the head of the Administration for Children’s Services April 10 about the impact that marijuana policies have on child-welfare cases.

The hearing, chaired by Council Member Stephen Levin, examined what role parents’ marijuana use played in children being removed from their homes, as well as whether current policies should be altered, given the drug’s potential legalization.

The state Social Services Law indicated that the use of either legal or illegal substances did not warrant a child’s removal. ACS Commissioner David Hansell testified that in cases where a parent or newborn baby tested positive for drugs, Child Protective Specialists recommended treatment services in order to keep the baby in the home.

But state law also required CPS workers to determine if a parent’s substance abuse puts the child in imminent danger or affects his or her ability to provide “adequate guardianship for a child.” During a previous hearing, Mr. Hansell acknowledged that inadequate guardianship was a “vague indicator.”

“We need more clarity on this issue, with or without legalization,” Mr. Levin said. “Vague directives lead to wide discretion, and this discretion could lead to discrimination.”

Each year, about 20 to 25 percent of the 60,000 claims ACS investigates include complaints of substance abuse. But the Council Members were concerned the agency had no way to track how many child-welfare cases were opened solely because of calls about marijuana use.

Some Progress

Until January, the state reporting system used by ACS, Connections, did not have a drop-down option to note what specific drug a parent under investigation was abusing. That feature has been added, but does not allow child-welfare staff to indicate whether the original report of abuse included claims of marijuana use. 

Also under scrutiny were policies related to marijuana use, particularly among pregnant women and new mothers, within the city’s public-hospital system. Police Officers, Teachers and medical professionals are mandated by state law to report suspicions of child abuse and neglect.

At the hearing, NYC Health + Hospitals Senior Vice President Machelle Allen clarified that when a woman comes to a city hospital to give birth, staff can only report to the state whether the baby tested positive for marijuana. She also stated that the women were allowed to refuse drug screenings, and that their consent was indicated in their medical records, but there were no overall records tracking how many women permitted the test.

But the fact that H + H did not keep records of whether pregnant women and new mothers consented to drug tests disturbed the Council.

Involuntary Testing?

Legal advocates, including representatives from the Bronx Defenders and the Neighborhood Defenders of Harlem, argued that the consent and reporting policies Ms. Allen referenced weren’t being followed. They said that some medical records belonging to women who gave birth in public hospitals showed that they did not agree to being tested but were anyway, and that many records did not indicate one way or another whether the patient consented to drug screenings.

“It seems to be that there is a complete divide between the policy and the practice that is being talked about,” said Jessica Prince, an attorney at the Bronx Defenders.

The Council cited the case of 28-year-old Shakira Kennedy, who used cannabis when she was pregnant with twins because her intense morning sickness kept her from eating and drinking, and prescribed medicine wasn’t working. She disclosed this fact to her doctor, and ACS was informed despite her twins’ drug test coming up negative. Ms. Kennedy was required to attend a rehab program three days a week in order to keep her children.

‘Tearing Families Apart’

Council Member Adrienne Adams pointed to a “systemic criminalization of women of color” on the issue of marijuana use in child-welfare cases. “We are absolutely tearing families apart needlessly,” she said.

Mr. Hansell acknowledged that black and brown families had a disproportionate number of encounters with the child-welfare system overall: about three-quarters of children in foster care were black or Latino, while 18 percent were of an unknown race.

Mr. Levin noted that in his conversations with CPS workers, they believed mandated reporters needed more unconscious-bias training.

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