By disproportionally targeting communities of color and low-income individuals with no burden of proof, the agencies charged with the well-being of families are creating irreparable generational damage. The numbers speak for themselves: Between 2000 and 2011, one out of nine Black children were removed from their home by the foster system, compared to one in 17 white children. The United States has the highest number of legal orphans in the world, because so many children are forcibly made parentless through termination of parental rights. And cannabis is now a new blunt instrument officials are using — even in states where it’s legal either medically or recreationally — to deny neglected children homes.
As the report titled “Whatever they do, I’m her comfort, I’m her protector: How the foster system has become ground zero for the US drug war” makes clear, the foster care system criminalizes caretakers and parents because of cannabis instead of doing what is in the best interest of the children. The report, authored by Movement for Family Power, NYU Family Defense Clinic, and the Drug Policy Alliance shows that the foster system is set up to terminate child-parent relationships.
Anti-custody discriminations against cannabis use make it almost impossible for parents to be honest about their consumption practices. The Hastings Women’s Law Journal argues child custody cases involving cannabis largely count on the people involved (attorneys, judges, social workers, etc.) who have biases regarding medical or adult use of cannabis. With any parental custodial arrangement, the threat of removal (and possible imprisonment) is very real for cannabis users, but the situation is even more precarious when licensing is involved.
Rebecca Masterson wrote on her blog about the state of Arizona rejecting her foster license back in 2017, because she was administering CBD oil to her son. Despite having the legal substance in a safe location and her son having a serious condition for which CBD was the only relief, the Arizona Department of Children Services(requests for comments were not returned) would not give her the license that would enable her to get financial assistance for items like clothing and food like other adopted families are eligible for.
Prospective adoptive or foster parents must meet criteria that involves a background check, a home inspection, and financial and lifestyle reviews. The process is lengthy and intense, often involving more than one agency. Before beginning the journey of fostering or adopting, there is a lot to figure out.
For one, there is the difference between fostering, which is when children are placed until they can return to their biological family or are permanently adopted. And adoption is when the parents gain full legal custody and rights of the child. Then, there is the issue of private agencies or public adoption through fostering; some agencies may be faith-based or conservative. Finally, there are domestic adoptions, which is when the adoptee is born in the US or there are international, or intercountry, ones that involve adoption from a foreign country.
As Reenal Doshi of Americans for Safe Access points out, the process of finding out if cannabis use is acceptable becomes even more complex when you factor in dealing with other countries.
“For example, even if a state extends laws protecting registered cannabis patients who are seeking to adopt a child from a foreign country, US federal laws and the laws of the child’s parent country may expressly prohibit adoption to a parent who uses cannabis,” Doshi tells The News Station.
This could be the case if someone is adopting from a country like China, where having a history of cannabis use prohibits the ability to adopt. When seeking an international adoption, a prospective parent will have to follow a combination of immigration laws, adoption agency rules, and requirements from participating countries. In the US, only 10 states (out of 35 that have cannabis programs) have statutory provisions for qualified parents to avoid custody intervention, including Washington state, New York, Delaware, and Hawaii.
In the Parental Use as Child Abuse guide, each state’s laws regarding what can be viewed as maltreatment when it comes to substance and alcohol abuse is laid out in great detail. The main focus is on exposing newborns to substances in the prenatal stage and for outlining how exposing children to use can lead to custody intervention. While some states may have resources for caseworkers to better understand cannabis laws, the report makes it clear that substances include Schedule 1 drugs. And even though the majority of states have legalized cannabis in one form or another, it’s still federally classified as a narcotic.
Florida doesn’t mention cannabis as a reason to deny fostering certification in the most recent state adoption statutes. This could be why Ryan (who prefers to remain anonymous because she discussed sensitive, personal issues with The News Station) was certified as a foster home, even though she was honest about her status as a medical cannabis patient in the state. From the beginning of the process, Ryan asked trainers and state officials if the fact that she and her husband were marijuana card holders would be an issue.
Ryan says she was transparent that her husband works in the cannabis industry, but that didn’t cause a delay or denial.
“It didn’t slow the process. Maybe since we brought it up early it was easier. When the state had to approve our license, they did come back and ask for more references,” Ryan tells The News Station.
Even if your state or county laws say nothing specific about cannabis use as a reason for denial of custodial rights or foster certification, federal status still supersedes local statutes. In the Parental Use as Child Abuse guide, the Department of Health and Human Services (HHS) Child Welfare Bureau makes it clear that substance use is any prescription or nonprescription drug that is classified as a Schedule 1 or 2 narcotic. Because cannabis is currently listed as a Schedule 1, mandated reporters can still threaten custody after an adoptive parent obtains approval.
Mandated reporters are anyone in a professional setting that involves the care of children: doctors and all medical staff, teachers, clergy, library workers, government employees, etc. While each state has specific laws regarding what mandated reporters are required to report, the bottom line is that if they suspect abuse in any form, they can initiate a case with the HHS. Dr. Felecia Dawson says that she has never reported anyone as a mandated reporter, because low-THC cannabis has been used historically for thousands of years.
“It was used for nausea, vomiting, pain, dysfunctional labor and postpartum hemorrhage. Unfortunately, most of the medical research on cannabis-exposed children has failed to compare them to a normative database,” Dawson tells The News Station.
Dawson points to a study that says once you control for age and education, prenatal cannabis exposure (a common reason for mandated reporters to initiate an investigation), exposure alone does not significantly impact cognition. She says that a positive drug test does not equal child abuse, and negative test results do not guarantee maltreatment won’t exist.
“Families, children and our country would be better served if we invested the resources to support them instead of tearing them apart”Dr. Felicia Dawson
Ultimately, the decision to grant placement with either fostering or adoption is up to the agencies involved. Amy Imber, of Connecting Hearts Adoption Services, seconds the sentiment. She believes medical cannabis use shouldn’t be a cause for denial of private adoption in Florida. Her private home study agency that works exclusively with Floridian clientele doesn’t reject prospective parents because of their cannabis use, so long as it is medical. Nothing in the 2020 Florida Adoption Statutes state anything related to potential caretaker’s cannabis use, medical or otherwise.
“It really is at the discretion of the agency working with the family as to whether or not they will work with them,” Imber tells The News Station.
Until the language involving child welfare changes to explicitly prevent removal over cannabis use, a parent must act as their own advocate. Parents who have been through the wringer with CPS are turning their negative experience into sources for others in similar situations. Kelly Bruce of CannaMommy.org, for example, went through a battle with CPS before creating an educational online community for cannabis-using mothers. Family Law and Cannabis Alliance (FLCA), which is now an archival educational resource, began after one of the founders experienced a series of intense CPS disruptions.
The hard work of advocacy groups is making it easier for parents to prepare for what may come, but there won’t be any clear answers until the language involving child welfare laws completely changes. Getting approved for adoption or fostering may not be a problem for some, but the threat of family intervention remains.