Viewpoint: Smoke a Joint, Lose Your Child?

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People caught with small amounts of marijuana in New York State are supposed to receive no more than a $100 fine, the equivalent of a traffic ticket. Instead, in New York City, many such people are being accused of child neglect, even if they are never charged with a drug-related violation. And some have even lost custody of their children.

Hundreds of child welfare investigations have been initiated as a result of marijuana arrests, though the parents who were caught were not charged or convicted of any crime, the New York Times reported Thursday in a front-page story.

Reporter Mosi Secret described the case of a Bronx mother, Penelope Harris, whose home was searched on suspicion of drug dealing. Police found about a third of an ounce of marijuana, which Harris said belonged to her boyfriend for personal use. The police found no evidence of drug sales and Harris, who was taking care of two children at home, denied dealing drugs and tested negative for drug use. Bronx prosecutors did not file charges against her.

But that did not deter the Administration for Children’s Services. Secret wrote:

The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.

Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.

“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”

Child services agreed to return her son if Harris agreed to seek therapy, submit to random drug screens and keep her boyfriend from returning to her home. These conditions were administered despite the fact that there was no evidence that Harris was a repeated drug misuser (which is required by the state to consider a child neglected), no evidence that the boyfriend was addicted, either, and none that anyone was harming Harris’ children in the first place. Indeed, Harris’ case was closed in April with no finding of neglect.

For their part, child welfare authorities defend their practices:

Michael Fagan, a spokesman for the Administration for Children’s Services, said the defense lawyers were offering a simplistic portrayal of these cases.

“Drug use itself is not child abuse or neglect, but it can put children in danger of neglect or abuse,” Mr. Fagan said. “We think the argument that use of cocaine, heroin or marijuana by a parent of young children should not be looked into or should simply be ignored is just plain wrong.”

Hundreds of parents have been investigated by child welfare agencies following marijuana arrests, though, according to lawyers involved, only about a dozen cases of related custody loss are currently on the dockets, the Times reports.

Particularly for young children, however, such removal from the home is traumatic. Research shows that each “transition” from a parent to foster care, or from one foster home to another, increases the odds of later mental health problems, juvenile delinquency, educational failure and, ironically in the case of removal related to drugs, addiction.

Moreover, child psychiatrists are unanimous in saying that loss of custody should be a last resort, even in most cases of genuine abuse and neglect. Providing services to the family to avoid removal should almost always be tried first, even when parents are addicts.

In cases with no evidence of addiction — and in which marijuana use is the only issue that calls a family to the attention of child welfare services — it’s safe to say that custody transfer would be far more likely to harm the child than having a parent who sometimes smokes pot. Harris’ niece had already transitioned at least once from her mother’s home to her aunt’s, and her aunt’s marijuana case added two more moves: she spent more than a year in a foster home before returning to her aunt.

MORE: Study: Marijuana Not Linked With Long Term Cognitive Impairment

There is no evidence that occasional or even heavy marijuana smoking makes a person an unfit parent. “It’s like alcohol,” says Carl Hart, associate professor of psychology at Columbia University, who has studied the effects of marijuana in humans in the laboratory and has testified for the defense in some of these New York City child-neglect cases. “Is there any evidence that simply drinking alcohol impairs parenting?” (Full disclosure: Hart and I are currently collaborating on a book.)

“Certainly, if someone is intoxicated, you don’t want them driving, but even alcoholics can parent,” he says. “You must first demonstrate that the child is in danger.”

The vast majority of alcohol drinkers — like the vast majority of marijuana smokers — are recreational users whose habits do not interfere with their work, relationships or parenting.

Moreover, many of these child-neglect cases arise in the context of policing strategies that generate enormous numbers of “stop and frisk” encounters, mainly between blacks and Hispanics and the police. These often result in marijuana arrests, even for small amounts that are not supposed to trigger criminal cases. That’s because, while possession of small amounts of marijuana isn’t a criminal offense, “publicly displaying” marijuana is.

During stop and frisks, when police ask suspects to empty their pockets, the marijuana becomes visible. That allows for arrest for “public display” — and essentially makes the law that decriminalizes possession of small amounts of marijuana in New York more theoretical than applied, at least in arrests outside the home.

Some 350,000 such arrests have occurred in New York City since 2002, and in 90% of cases, those arrested were black or Hispanic. Overall, whites are twice as likely as blacks in the city to be marijuana smokers, but whites are hardly ever arrested or charged.

Citing these figures, several city council members called on state legislators this week to change the “public display” law to correct the racial disparity. They also noted that these arrests cost $75 million annually — hardly chump change in a fiscally strapped economy.

The skewed law enforcement practice means, of course, that parents who are most at risk of custody loss due to marijuana arrests are virtually all black and Hispanic.

MORE: U.S. Rules That Marijuana Has No Medical Use. What Does Science Say?

According to Hart, the problem isn’t just on the streets. Black and Latina women are also at greater risk for marijuana-related child welfare investigations when they seek medical care in hospitals, and doctors surreptitiously test them for drugs. A positive test for marijuana can lead to experiences like that of Harris — even when women are never charged with a crime. Mere admission of past marijuana use to a doctor can sometimes result in a call to child services.

Patients’ drug histories may be kept confidential in drug rehabs, but if a hospital chooses to test for drugs, then determines that a positive test result or admission of past use is evidence of potential child abuse, health-care workers are required to report their suspicions to child welfare authorities.

The problem is that there is no evidence to tie marijuana use automatically to neglectful parenting. Current use also has no bearing on whether a person is addicted or has other drug problems. A positive urine test doesn’t even mean someone is high.

“The real issue is that courts don’t realize that THC-positive urine toxicology tells them nothing about the person’s functioning or intoxication,” says Hart. “There’s an underlying assumption that if someone has a positive marijuana toxicology, you know that they’re intoxicated, when in fact that’s false. THC stays in the system for up to three weeks in many cases.”

White women rarely experience this kind of medical surveillance when they visit hospitals, once again creating a racially divided system that puts black and Hispanic women at higher risk for intrusive child welfare investigations and possible loss of custody.

Twelve percent of New Yorkers over 12 admit to having smoked marijuana at least once in the last year. Most of them are white. If we really believe that parents who use marijuana are such a threat to their children that they should be investigated for neglect, shouldn’t we focus on the parents who are most likely to use the drug?

The fact that these marijuana-related investigations occur almost exclusively among minorities suggests that marijuana isn’t really the problem, it’s racism.

MORE: Top 10 Unhealthy Side Effects of the War on Drugs

Maia Szalavitz is a health writer at Find her on Twitter at @maiasz. You can also continue the discussion on TIME Healthland’s Facebook page and on Twitter at @TIMEHealthland.

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