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Parenting & Marijuana: Leave No Family Behind

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Joint Opinions

Parenting & Marijuana: Leave No Family Behind

The march of progressive marijuana legislation is a wonderful thing to behold. There are 23 medical states including the District of Columbia and Guam, 17 states (plus D.C.) where cannabis is decriminalized and four states including D.C. have gone for recreational legalization. All of these major changes have happened in less than 20 years — an unusually fast pace for social issues. The speed of change has continued to increase, with projections that the majority of the country will have medical marijuana programs within five years and that legalization will hit the tipping point by 2025. However, these landmark bills largely concentrate on criminal, not civil, matters — and that leaves parents at great risk of being left behind as second-class citizens.

Regardless of these changes in the law, parents continue to face Child Protective Services (CPS) over their children’s medical cannabis use or their own medical or recreational marijuana use, which family courts consider as a factor in child custody disputes. This has created a problem throughout the country. Parents who use cannabis medically or recreationally face the traumatizing experience of being forced to go through CPS investigations or assessments for child abuse and/or neglect; participate in service plans that include requirements such as substance abuse rehabilitation, parenting classes and regular and/or random drug tests; possible removal of children from the family home and even (permanent) termination of parental rights.

There is little due process available to a parent caught in this system.  In many states, court-appointed attorneys aren’t provided until termination hearings. Even in court hearings, including ones in which the continued custody of their children is at risk, parents must pay for a private attorney or represent themselves. While some states do provide an attorney when a CPS case becomes a court matter, no state provides representation against CPS in cases that never go to court, which is the majority of them. There are also no states that give a right of representation to parties fighting over custody in family court.

Nonetheless, CPS and custody cases can continue indefinitely, making parents jump through endless hoops in order to claim their parental rights.  In truly Kafka-esque fashion, some of these CPS actions are based only on an assessment of future risk — that is, the chance that the parental use of marijuana might maybe at some point someday cause the child to become abused or neglected. Even a single assessment or investigation can put a parent on their state’s Central Registry for child abusers, which can affect their ability to gain any employment involving children or even chaperone their children’s field trips.

The process generally begins when a report is made to CPS by a professional required to report child abuse or neglect, like a health care worker, teacher, or coach. Sometimes reports are even made anonymously by anyone who has a bone to pick against a family, such as an ex-partner, former friend, landlord or boss/employee. There are a wide variety of interpretations of mandated reporting laws and it may be that the report isn’t mandated, but many reporters believe (or are taught) that it is. It doesn’t matter if the mandated professional believes that marijuana use doesn’t equal bad parenting. When a report is made to CPS, caseworkers often have little choice but to get involved.

CPS must adhere to a myriad of laws, regulations and policies as detailed on Family Law and Cannabis Alliance State Profiles Project, which treat any cannabis use by parents as evidence of child neglect. These policies, along with the Drug War ideology within CPS and the financial incentives between government agencies, result in significant, overwhelming caseloads for CPS social workers, with many cases solely about marijuana.  Meanwhile, legitimately abused and neglected children known to CPS are dying at unprecedented rates.

Although there’s no discernable effect on infants from prenatal marijuana exposure and a variety of clinical studies failing to document harm, women who give birth to babies who then test positive for marijuana also face a myriad of possible outcomes. Consequences could range from investigation to removal of their newborn from their custody for having a so-called “substance-exposed newborn.”

Still, certain criminal laws fall outside the realm covered by marijuana reform statutes. In some states like Alabama, Tennessee and South Carolina, pregnant women who use marijuana can be arrested and charged for “harming” their fetus based on a newborn testing positive for marijuana.  In most cases, the charge is criminal child endangerment charges on top of various cannabis charges in those states where medical and/or recreational use remains illegal.

Women who breastfeed their infants (including medical marijuana patients) have also faced such charges along with allegations of “delivery of a drug to a minor.” Usually, they become embroiled in CPS proceedings as well, despite clinical studies both showing the lack of good science backing up the claim that breastfeeding while using marijuana “harms” a newborn — and indeed, the fact that cannabinoids occur naturally in breastmilk to aid the baby’s appetite and sleep regulation.

A national movement called “Drug Endangered Children” or DEC was originally borne out of kids’ exposure to meth labs but which now goes after cannabis and any other illegal drug. It’s a political movement closely aligned with Kevin Sabet and his “Project SAM,” based on the notion that anyone who uses marijuana is likely to neglect and/or abuse children as well as on unfounded, unscientific claims that any exposure to cannabis is itself harm.

Headquartered in Colorado, DEC proponents have repeatedly tried to influence the law in this area via the Amendment 64 Task Force and separate legislation targeting parental cannabis use in a number of sessions. They have field offices in many other states. Their aim is to continue to punish parents who use marijuana for any reason and even create new penalties that apply solely to parents.

Parents in medical or legal jurisdictions often feel a sense of safety, allowing them the freedom to speak openly to mandated reporters or at events such as PTA meetings with other parents.  This activism and advocacy from parents is crucial to change — particularly from mothers, who need to convince other mothers and women in general to support reform at a time when women are underrepresented in the fight.  But there’s little, or nothing, protecting them.

My organization, Family Law & Cannabis Alliance, has seen an uptick of CPS and custodial cases in states with progressive marijuana laws. Some states have parent-protection provisions in their laws, but these provide CPS and courts with enough wiggle room to disregard them. While FLCA works on fixing that, parents are left with no security over their supposed medical or legal use.

All of this makes parents the only people left still penalized — and thus second-class citizens — in the new marijuana landscape. Whether this is allowed to continue and affect families will either be up to reformers or to the prohibitionists fighting the last gasp of the war on marijuana.

Are you a parent who smokes cannabis? What do you think about the laws in your state? Tell us in the comments. 



  1. Kathleen Pfeiffer

    March 15, 2015 at 5:46 pm

    I am a single mom who was raising my three respectful, smart, happy, loved, very well taken care of children. I have done sports homework teachers conferences, dealt with difficult times. I am a medical marijuana patient I have used marijuana for 30 years. my straight A teenage daughter was using marijuana her dad found out took her to cps and made her do a drug screen. She qualified for medical marijuana card, but cps took all my children,My youngest was 5 so very heart broken still hates living with his dad my older two live with there dad I did every thing they asked even more, and still I lost custody. I lost 15 pounds in a week when they were taken April 30, 2012 and I am 5’6″ and have always weighed around 115lbs, except when I was pregnant, I still wake up in the morning wanting to get them up in the morning for school, my children have always come first, I part child support and still my son had holes in his shoes, I just bought him another pair of Nike, I made 27668 last year, my oldest two children’s dad makes $100000 not including his wife’s income. I just bought my 14 year old boy shoes, back pack, socks and underwear
    My youngest I’ve bought all his shoes and winter boots except 1 pair in 7 years, also I bought him socks under ware pants shirts back pack. And still my youngest goes to school all week with same socks on, I put clean socks on him Thursday when I had him for a few hours. I am still so hurt angry shocked that my babies have been taken from their soul loving provider their loving Mom my rights have been violated, I believe that God gave us this herb to use and consume for our ailments, I never neglected nor abused my children, I would give my life for them! My children have grown up with manners morals and good hard work ethics to be good people. I am honest hard working, I am a dry wall finisher I can make a house beautiful, I take pride in my work I also do good little deeds every day let someone go ahead of me in line open door for elderly or anyone, smile at people , even though my heart aches every day and my babies count the day they can move back in
    Its so wrong!
    It’s so wrong!
    I would of been devastated to be taken from my mom at 5 even my teenagers they have still cried together
    My youngest told me just the other day how he remembers how he was crying so hard and he hung onto the refrigerator handle and didn’t want to leave me and that he cried every night for me.
    And so do I cry.

  2. Derek

    March 6, 2015 at 4:01 pm

    Sara, I respect what you’re doing and this is a well-founded article. Furthermore, laws should not exist without a factual foundation, and clearly these do not have that.

    But I think it’s foolish to say that MJ is not bad for a baby’s health until proven otherwise. With a pregnancy you should err on the conservative side and treat an unknown as harmful until tests prove it is NOT harmful.

    Think of all the things that are similar to MJ – alcohol, tobacco, other drugs. We didn’t always know that pregnant women should avoid these substances, but now we do. Do you honestly think it’s worth the risk to an unborn child to gamble until we KNOW it’s bad for them?

    Furthermore, we know that smoking MJ has negative consequences for the adolescent brain. Why? Because the adolescent brain is not fully developed. What’s less developed than an infant’s brain?

    I am a regular weed smoker and believe most laws pertaining to it need reform or, often, removal. But we have an obligation to protect those that cannot protect themselves.

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