The ground feels unsteady, like there’s some dark ocean lurching beneath the wide flat floor tiles. I don’t want to be here. It’s early July, the second day of my dependency trial, when a single judge will decide whether or not I’m fit to parent my three- and four-year-old daughters.

    By that point I’d been separated from them for three months, granted only one weekly supervised visit—a jarring change from my role as their primary caregiver. More than a month had passed since the first day of trial, when I gave an hour of testimony.

    The child protective investigator had also provided a strange, mumbled testimony that day. I remember how she slid down in her chair as she described actions of hers and her agency’s that were in such clear violation of federal and state statutes that my attorney joined my husband’s lawyer in a motion to have the case dismissed immediately. It should have worked.

    The investigator not only stated that my children showed no signs of abuse or neglect, but also that she made the decision to bring my case before a judge because of my drug treatment history—which is a violation of the Americans with Disabilities Act (ADA). But instead of granting us custody of our children, the judge immediately denied the motion.

    Re-entering the courtroom for the disposition in July, I felt like we were succumbing to a foregone conclusion. It’s now late October, and I know I was right.

     

    One of Millions of Cases Related to Parental Drug Use

    Child protective services—an umbrella term for the child welfare agencies that operate under various names across the United States—intervenes in the lives of more than three million children and their families each year. For some, that intervention is merely a house call, but for the 20 percent against whom allegations are deemed substantiated, the stakes rapidly become dire.

    The true number of families who experience intrusive CPS involvement is likely to be even higher, as tactics such as “voluntary” safety plans often allow agency workers to control families before allegations are fully investigated. An estimated two thirds or more of these cases are related to parental drug use. In April of 2018, my family joined that statistical pool.

    She described me as a “heroin addict”—negating the several years of recovery work I’ve engaged in.

    My husband, my two daughters and I had been living in Broward County, Florida with his parents for a month, after they pledged to help him recover from a mental health breakdown. While I was away in Miami for three days, my mother-in-law, with whom I had a difficult relationship, phoned the state child abuse hotline and claimed I had disappeared to use drugs. She described me as a “heroin addict”—negating the several years of pharmacotherapy and psychological recovery work I’ve engaged in since having an active opioid addiction.

    My record of having taken prescribed methadone while pregnant in the state of Florida a few years earlier was enough, in the investigator’s mind, to file a petition to have my two daughters temporarily removed from my custody.

    At the hearing, the magistrate said she could see no signs of current drug use, but granted the petition based on my “history.” I was ordered out of the home I was sharing with my in-laws, and they were given physical custody of my young daughters. A series of negative urine and hair panels later, my daughters have still not been returned to me.

    My case may be on the extreme end of the child-welfare-involvement spectrum, but it’s far from unique.

     

    Prescribed Methadone or Buprenorphine Can Threaten Custody

    Josh Michtom, who works as a public defender for families and children involved with CPS in Connecticut, described to me over the phone a case in which two parents lost permanent custody of their kids because they smoked marijuana.

    “They solved the problem that brought them to court,” Michtom recalled, noting that the initial complaint related to domestic violence perpetrated by the father against the mother. “By the time it came to trial there was no record of DV for nine months. But there was ongoing refusal to take drug tests, so the court said they hadn’t rehabilitated.”

    Earlier this year I reported on the Truitt family for Talk Poverty. Emily Truitt of Delaware had her two-year-old son removed from her care for 30 days, with no due process ensuing, while her local child welfare agency investigated neglect accusations they ultimately deemed unfounded. The reason for the removal? The investigator smelled marijuana in her home, and Truitt said that she had used cocaine once in the week prior.

    Federal law requires that all substance-exposed newborns be reported to child services, even when it was the result of prescribed medication.

    The US Department of Health and Human Services explicitly states that “drug tests do not provide sufficient information for substantiating allegations of child abuse or neglect or for making decisions about the disposition of a case (including decisions regarding child removal, family reunification, or termination of parental rights).”

    Yet as these cases exemplify, that is exactly what happens to many families around the country. In my case, the mere accusation of drug use was enough to remove my kids. As overdose deaths continued to soar and hospitals treat an increasing number of substance-exposed newborns, it appears child protective services have decided to act less as a social welfare agency and more as an arm of the War on Drugs.

    This is perhaps most apparent in cases involving mothers who are prescribed methadone and buprenorphine. Federal law requires that all substance-exposed newborns be reported to child services. This applies even when the substance exposure was the result of prescribed medication.

    It’s up to the discretion of the local child welfare agency whether or not to pursue an investigation. Too often, however, the same stigma that drives drug courts to forbid methadone or buprenorphine drives agencies to investigate patients undergoing treatment for opioid use disorder (OUD).

    “We have received calls from parents around the country that have had their children removed because they are being treated with these medications.”

    Sometimes, those investigations result in a mandate to discontinue the medication—despite long-term use of methadone or buprenorphine being associated with reducing mortality by by half or more in people with OUD.

    Sally Friedman, the legal director at Legal Action Center in New York, witnesses the devastation this wreaks on the lives of mothers and fathers on a daily basis. “We have received calls and emails from parents in states around the country that have had their children removed because they are being treated with these medications,” she said.

    Friedman went on to describe the case of another Florida-based mother who was ordered by a judge to taper off her OUD medication. Before tapering, the mother had been stable and engaged in her court-ordered reunification services. After tapering, she began experiencing anxiety, cravings and other symptoms of withdrawal. Eventually, she relapsed. “I think she lost permanent custody,” said Friedman. “When I spoke with her, she was all alone. She said I was the only person who was checking in on her.”

    The ADA does not apply to people currently using illegal drugs, but it does cover substance use disorder patients in remission or actively engaged in treatment, including medication treatment.

     

    Pushing Back Against Injustice

    Some efforts are made to enforce this protection. In October 2017, The Department of Justice issued a detailed letter to the New York State Office of the Attorney General in response to one judge in Sullivan County, New York, whom Friedman says was regularly ordering parents off their meds and making statements like “methadone, heroin—same thing,”

    The letter states that “a court many not conclude that a [medication-assisted treatment] participant poses a ‘direct threat’ [to her children] based on generalizations or scientifically unsupported assumptions about MAT or persons who receive MAT for opioid use disorders.”

    He has seen his patients forced to come off of their medication by judges, magistrates and child protective workers.

    Dr. Stephen Straubing, an addiction medicine physician operating out of Gainesville, Florida has encountered issues similar to those that Friedman litigates. He has seen his patients forced to come off of their medication by judges, magistrates and child protective workers. In one case, he said, a patient was ordered by a judge to go down to 30 mg of methadone—a dose Straubing considered arbitrary and nonsensical.

    However, he has also made some progress in shifting this dynamic locally. He cited the case of one child welfare worker who ordered his pregnant patient off her buprenorphine. Straubing said that she became “a convert” after he wrote her a detailed letter explaining why that was contraindicated for both mother and baby.

    Small-scale changes being made by lawyers, doctors, and advocates are heartening, but they aren’t happening fast enough. And they do nothing to help the cases of people who aren’t necessarily covered by the ADA because they have used an illegal drug (which includes cannabis) but aren’t abusing or neglecting their children.

    Stigma against drug use—fueled in part by media stories about babies born “addicted” to drugs—has created a climate in which any parent who uses drugs is automatically demonized. And because there hasn’t yet been any mass enforcement by a federal agency like the Department of Justice, many parents whose cases probably would fall under the ADA (like mine) still have no recourse to remedy the situation.

     

    My Appeal—And a Sense of Hopelessness

    It has now been six months since my daughters were removed from my care for allegations that were deemed substantiated by a judge in spite of physical evidence and expert testimony to the contrary. I don’t have money for a private attorney, so I am left struggling to navigate a slow and unjust system that has branded me negligent based on my medical condition and economic status.  

    I have an appeal pending, with an attorney supplied through the same state-funded service that provided my trial counsel. Unless we succeed in overturning my case, my only chance at reunifying with my daughters is to comply with a series of court mandates, including random drug tests, parenting classes, and a psychological evaluation.

    At my recent six-month review, the judge deemed three out of four of my negative urine tests as positive because she felt my creatinine levels indicated I had done something to dilute the test. I did nothing out of the ordinary to cause those results, and this adds an extra sense of hopelessness to my case.

    I am nowhere near alone. Until some kind of meaningful action is taken by the federal government to uphold the rights of people with substance use disorders—and non-abusive parents who use drugs—families in the United States will continue to experience traumatic, unnecessary and discriminatory separation.


    Photo by Edi Libedinsky on Unsplash

    • Elizabeth Brico

      Elizabeth is a journalist from the Pacific Northwest. Her work has appeared in publications including Vox, Tonic/Vice, TalkPoverty, HealthyPlace and The Establishment. She has an MFA in Writing and Poetics from Naropa University. She also writes about trauma, addiction, and recovery on her blog, Betty's Battleground.

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