For those who have no experience with child protective services, the state foster system often brings to mind thoughts of wrongs righted, children saved, and love persevering.

Unfortunately, that’s too often not the case.

A recent report reveals how the state foster system acts as a secondary criminal justice system, one that targets cannabis consumers—and even medical marijuana patients.

A recent report reveals how the state foster system acts as a secondary criminal justice system—and uses drug allegations, including cannabis use, as a pretext to rip children away from their parents.

The 174-page report, “How the Foster System Has Become Ground Zero for the U.S. Drug War,” was produced by a coalition of social justice organizations, including the Movement for Family Power, the NYU Family Defense Clinic, and the Drug Policy Alliance.

States kidnap the children of medical marijuana patients

Recent years have seen infamous examples of children forcibly removed from their homes due to a parent’s use of medical marijuana:

  • In 2016, Kansas state officials took five of Raymond Schwab’s children into custody on suspicion of child endangerment because Schwab, a military veteran, used medical marijuana legally obtained in nearby Colorado.
  • The previous year, Kansas officials removed Shona Banda’s 11-year-old son after he told his drug education program teacher that his mother used cannabis as medicine.
  • Leafly investigated the case of Max Lorincz, a 35-year-old father in Spring Lake, Michigan, whose son was taken from him and his wife in 2014 because Lorincz used legal medical marijuana to treat a chronic condition. “The whole thing was a nightmare,” Lorincz recalled, “I didn’t understand how they could take our child away.”

Those cases aren’t glitches in the system. They are examples of the system functioning as it’s meant to—which is to say, case workers are instructed to tear families apart over the slightest whiff of cannabis, even in legal states.

Racial disparities are glaring

Image source: Ground Zero report, Movement for Family Power et al, 2020.

America’s foster system: a problematic history

Today’s foster system dates back to 1935, when its forerunner was established at the federal level to identify and respond to families living in poverty who were determined to be undeserving of cash assistance.

Our dedication to the idea of ‘bootstrapping’ has resulted in millions of children being ripped away from parents who may have needed just a little help.

This basic premise still exists to this day. The problem lies in determining which families are “undeserving” of state or federal aid. Those judgments functionally criminalize poverty. They shift the blame for problematic family conditions away from systemic issues of oppression and onto the individual.

Our collective dedication to the idea of “bootstrapping” has resulted in millions of children being ripped away from parents who may have needed just a little help.

Family removal often does more damage than good

Children removed from their families and placed into foster or adoptive care often face worse outcomes than children from similar circumstances who remain with their families.

In one survey of nearly 6,000 people incarcerated in the Kansas prison system, 20% had spent time in a state foster system as children. Children who grow up within the foster system are much more likely to be scrutinized by that same system when they themselves become parents. 

Instead of helping provide aid to struggling families, the foster system punishes them. Just like the carceral system, the punishment dealt out by the foster system comes with its own traumas and contributes to the cycle of children forced into that system. 

The War on Drugs incentivized family removal

The arrival of crack cocaine in the 1980s, and the hysteria surrounding it, spurred politicians into a frenzy of legislation, passing ever-more draconian sentencing laws that disproportionately affected people of color. That era also affected the child welfare system: Child removals more than doubled.

Image source: Ground Zero report, Movement for Family Power et al.

Over time, the federal government has granted more and more power and funding to state-based foster care systems to remove children from families deemed unfit in the eyes of case workers. That pattern intensified during the War on Drugs, aided by Congress’ passage of the Adoption and Safe Families Act (ASFA) in 1997. 

AFSA created monetary incentives for state foster care agencies to fast-track the permanent removal of children from their families. AFSA’s policies mean that the U.S. Department of Health and Human Services now sends state agencies a benefit of $4,000 to $10,000 for each child adopted out of the foster system.

The enormous costs associated with this bill are covered, in part, by funding originally designated for Temporary Assistance for Needy Families (TANF), a program whose aim is to alleviate the worst impacts of poverty on children.

Because of AFSA, the United States now has the dubious honor of having the highest number of legal orphans in the world. 

Can’t talk to doctors about cannabis, because…

When it comes to legal cannabis use, many adult consumers and medical marijuana patients are hesitant to reveal their use to their own doctors. That reticence isn’t without good reason. Federal and state laws, passed in the name of child protection, have criminalized the doctor-patient privilege of privacy.

How exactly? Here’s how the dots connect.

Federal and state laws, passed in the name of child protection, have criminalized the doctor-patient privilege of privacy.

States interested in receiving federal funds provided through the Child Abuse Prevention Treatment Act (CAPTA) amendments of 2003, 2010, and 2016 can get that money only if they create a reporting system for medical professionals to utilize when faced with an infant impacted by substance abuse. That medical provider must also notify a local child protective services (CPS) agency, and ensure that the agency establish a “plan of safe care” for the infant and mother.

That “safeguard” has effectively put millions of pregnant people and mothers at risk of being reported to CPS for cannabis use that is perfectly legal. Women of color and those struggling economically are far more likely to be reported and thereby taken into a system that may monitor them for years thereafter.

CAPTA criminalized a health issue

CAPTA’s passage resulted in a slew of punitive state-level policies related to parental drug use, and functionally made reporting to child protective services the “nation’s primary response to substance use during pregnancy,” according to the Ground Zero report.

The problematic nature of those laws hasn’t gone unnoticed. The Family First Act of 2018, passed by Congress two years ago, appears on its surface to remediate some of the harms of the foster system. It legislated the reallocation of funds previously used to rehome foster children towards programs to treat substance abuse, mental health services, and parenting classes.

Some question, though, whether the foster system should be the vehicle through which these services are provided. Given its historically punitive behavior towards parents, the foster system is often viewed with suspicion and mistrust by the communities who stand to benefit from the Family First Act. 

No standards, overwhelming power

On its face, the foster system is meant to protect children from negligent or abusive parents. But the ability to assess a parent’s ability to raise children has never been standardized. What may be a perfectly normal act of parenting in the eyes of one case worker or agency may be, to a social worker in a different state, cause for removal of children from the home.

Goals follow money. Funding for separating children from families is three times higher than funding for keeping them together. 

Furthermore, the system has evolved with the nearly-exclusive focus of separating children from their families. The goal is not to repair families and support struggling parents. The goal is to post positive numbers of children “saved”—that is, taken from their parents and placed in the state foster care system.

As in any business, goals follow the money. And in the foster system, funding for separating children from their families is three times higher than funding for keeping families together. 

Funding drives the goal: removing kids from families

Image source: Ground Zero report, Movement for Family Power et al.

How the foster system weaponizes drug tests

One quote stands out in the Ground Zero report: “A drug test is not a test for addiction and certainly not a parenting test.” So said a nationally renowned OBGYN and addiction medicine specialist interviewed by the report’s authors. The fact that the doctor did not feel comfortable or safe enough to attach their name to the quote speaks volumes about how risky it still is to talk bluntly and honestly about drug use.

Once a family comes into contact with the child protective services system, state investigators have nearly unassailable power when it comes to determining if a parent is fit to raise children.

In New York City, 25% of child removals involve allegations of parental drug use.

That power has resulted in a system where, according to the report issued earlier this year, “the most consistent variable used to determine child maltreatment was [the investigator’s] opinion about the presence of maltreatment.” When faced with a system whose punitive actions are nearly entirely subjective, how are determinations about parenting made? Too often it comes down to the use of certain categories of drugs. 

In New York City, 25% of child removals involve allegations of parental drug use. Although data is hard to come by for foster systems nationally, “some studies estimate that over 80% of all foster system cases involve caretaker drug use allegations at some point in the life of the case.” Drug use has allowed the foster system a false sense of certainty in their evaluations of parental fitness—so much so that it has become almost weaponized. 

Who is being protected?

Historically, leaders of the War on Drugs often justified their actions by claiming they were protecting children from harm by their drug-addled parents. But, as with most things, the real story is far more complex. Because of the legislation passed to support the foster system nationally, and the corresponding legislation at state and local levels, drug use is equated to drug abuse in nearly all foster system cases. 

Think about how the issue of drug use/abuse is racialized. In the contemporary cannabis community, there is a growing movement of mostly white, female parents fighting for the right to enjoy cannabis while raising children. And why not? It’s legal in many states, and has been proven to be far safer than alcohol.

Outspoken ‘cannamoms’ are nearly all white—for good reason

But speaking publicly about cannabis use, for women who aren’t white and economically well off, risks the destruction of their entire family.

If those same mothers were Black and poor, they would face the real risk of permanently losing custody of their children. The report details the story of one mom whose blood was drawn for testing as she was giving birth. When the test turned up evidence of cannabis use within the past few weeks, state workers removed the newborn from the mother’s care. It took her two years to contest the removal of her daughter and eventually regain custody. 

Low, unreliable drug testing standards allowed

The criminal justice system has established clear standards for what kind of drug testing is allowed in court. Those same standards don’t apply to the foster system.

The most common drug test used within the foster system is, in fact, so inaccurate that it is not allowed to support legal action without confirmatory testing. But within the foster system it’s enough to start a case file and initiate a years-long battle for parents facing the loss of their children. 

Drug treatment, testing, and consent

Drug treatment programs required by the foster system are functionally more akin to surveillance programs than anything else. Parents are forced, in most cases on their own dime, to attend these programs without any clear indication of what it means to graduate from them. In many cases, the foster system forces parents to remain in these time-intensive programs with little more reason than a suspicion that they are unfit parents.  

Hospitals that serve low-income populations regularly engage in drug testing of pregnant women and newborns without their consent.

Then there’s the problem of consent. Hospitals that serve predominantly low-income populations regularly engage in drug testing of pregnant women and newborns without their consent. If they find evidence of drug use, those test results are reported to child protective services and can result in immediate removal of the newborn. These are the same drug tests that are not accurate enough to be used in court. 

Say it clearly: Drug use is not drug abuse

The focus on drug use within the foster system all revolves around the idea that all drug use indicates drug abuse.

The medical world has a clear definition of what constitutes a substance use disorder. As defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), substance use must negatively interfere with the user’s life or the lives of the people around them in order to qualify as a disorder. A simple drug test cannot show that negative effect. 

The cause of the struggle for many families is poverty, not drug use.

Despite the foster system’s insistence on equating drug use with unfit parenting, studies have found no correlation between parental drug use and child maltreatment. Instead, research has shown a strong correlation between maltreatment and environmental factors associated with poverty such as lack of access to health care and housing.

Poverty is cause of the struggle for many families, not drug use. But the foster system doesn’t address poverty. Instead, it uses evidence of drug consumption as a cheap, nonsensical, and counterproductive way to cast moral blame upon parents, and set in motion the violent process of state removal of children from the family home.

Here’s what can be done

The authors of the Ground Zero report have constructed a framework for reimagining the foster system. They offer an action list for each group of stakeholders, as outlined below.

Hospitals and medical care providers:

  • Care providers and social workers must understand the powerful implications of reporting people to CPS and the long-term harm and trauma caused by family separation.
  • Take accountability for the harms that have been inflicted on families of color, especially parents who use drugs.
  • Only conduct drug testing when medically indicated and with specific and informed consent for both the mother and newborn.
  • Stop the practice of placing newborns on “social hold”—i.e., taking a child from a parent without any judicial order. This is illegal, immoral, and inhumane.
  • All parents should be permitted and encouraged to have skin-to-skin contact with their children. This includes people who use drugs, who are also loving parents.

Political leaders and policy makers:

  • Repeal the Adoption and Safe Families Act (ASFA), and eliminate all timelines that limit the time a parent has to regain custody of their child or lose them forever.
  • Abolish the termination of parental rights and legalized estrangement of living families.
  • Repeal the Child Abuse Prevention Treatment Act, in particular the “plan of safe care” provision, which incentivizes hospitals to report mothers of newborn children to CPS agents if drug use is suspected.
  • Decrease and abolish the federal open-ended entitlement for funding foster care. Reinvest that money into community-based organizations that can provide services families need. Do not classify those organizations as mandated reporters.
  • Create and fund meaningful legal protections for accused parents.
  • Increase funding to social safety nets like cash assistance, Medicaid, and public housing.

Foster care agency leaders & staff:

  • Advocate for defunding of your agency, with a goal of moving services to community-based organizations that are not mandated reporters.
  • Stop policing drug use. Drug use does not lead to family separation for economically advantaged parents. It shouldn’t for less well-off parents, either.
  • Immediately remove all caseworker training materials that promote falsehoods regarding drug use.

Philanthropists:

  • Stop giving money to child protective service agencies, foster care agencies, and court improvement projects.
  • Fund activism to shrink and ultimately abolish the foster system.
  • Invest in community-based organizations that are reimagining ways to ensure the safety and wellbeing of children, families, and communities outside of carceral systems like state foster care.
  • Offer multi-year unrestricted grants and eliminate cumbersome requirements for grant seekers, especially community-based organizations.

Drug treatment providers:

  • Treat parents with dignity and respect. Recognize each parent’s strengths and encourage them.
  • Provide clarity regarding treatment duration, program requirements, autonomy, and the path(s) to graduation.
  • Social modification tactics, such as prohibitions against beauty treatments or hair weaves, are not treatment and should not be a prerequisite to obtain support.
  • Abstinence should not be the program’s goal of treatment.
  • Authentically employ the tactics and goals of harm reduction
  • End delays in graduating through various levels of programs for completely unrelated reasons such as housing security or cell phone violations.
  • Ensure all treatment providers/staff are trained in and are mandated to promote thoughtful, intersectional, race conscious treatment.
  • Decrease all coordination and complicity with the carceral system.

Attorneys for children:

  • Demand your offices provide immersive courses in harm reduction, led by people who use drugs.
  • Advocate for complete dismissal of all cases in which the allegations against a mother are based on toxicology tests during birth.
  • Use experts to challenge state agency positions about substance use, abuse, and testing.
  • Agree and discuss realistic safety plans for parents who use substances, and have candid non-punitive conversations about recurrence.
  • Advocate for and request material resources for the family on behalf of your client.

Family court judges:

  • Court intervention is a specific type of government intrusion. It’s not the same as support. Extending case supervision on families, simply because a parent uses drugs, should not be conflated with helping children or families.
  • Demand science in the courtroom. For example, demand expert testimony to make findings regarding harm; require forensic-grade tests before admitting drug test results.
  • End the practice of using child visitation as a “stick” for a parent’s drug abstinence. This tactic is cruel and does not work.

Media:

  • Understand that child protective services agencies err in all directions, and needlessly placing a child in foster care is harmful to the child.
  • Scale back the focus on child fatality stories, which don’t allow space to investigate the complexity of most family situations.
  • Practice balance. Present positive stories of adults who parent while using drugs.
  • Amplify the thought leadership and voices of those most affected.

Zoe Sigman's Bio Image

Zoe Sigman

Zoe Sigman serves as Broccoli Magazine’s science editor, previously served as the program director for Project CBD, and has testified about CBD and cannabis regulation before the FDA. She thinks science is magic made real, and loves breaking the technical jargon down so anyone can understand it. IG: @zoe_sigman

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