Regulatory policy

New York child protection agency continues to cite marijuana in family separations despite policy change and legalization

Marijuana was legalized statewide in March 2021. Many Democrats rallied around the racial equity that legalization was meant to bring. The law enshrined what had already been supposed to be ACS policy for years: no parent shall be deemed negligent solely for using marijuana, without proving that it is harmful or potentially harmful to the child. .

But court records and interviews with people directly involved in ACS proceedings suggest that New York’s child welfare system has been slow to change since its policy change and since legalization, marijuana continuing to be used as a cudgel against families, with lawyers relying on old taboos, and family court judges allowing outdated ideas about marijuana to persist.

Gothamist spoke to a dozen parents, attorneys, advocates, and experts who said they saw or experienced this firsthand. Half of those interviewed in detail were parents who said it had felt impossible to extricate themselves from deep-rooted biases in the child welfare system surrounding marijuana use, particularly towards people of color. . These interviews, along with records of family court cases, suggest that marijuana continues to be used both to help separate children from their parents and to separate families in longstanding court cases. of the family.

Although not all parents have used marijuana as their sole claim against them, their use of the drug has been cited to separate parents from children in multiple ways since legalization – from being a means of justifying the initial act of separation or extending time apart from their children through testing, drug addiction programs and other goals that critics say are arbitrary and unattainable. All of the parents interviewed are black. Some were in the shelter system when ACS first took their children. Most were women; one was a man.

All of the parents said they were unfairly inflicted with marijuana because of their race. They describe an era after cannabis legalization in which parents are still subject to drug testing, outpatient programs and separations. A parent said they were reunited with their child during a trial reunification, but the child was removed after testing positive for marijuana.

ACS denies that marijuana was ever used as the sole means of separating children from their parents. But because family court cases have more layers of confidentiality than others, the claim is difficult to verify. ACS cited procedural restrictions in providing even anonymized or disaggregated data to Gothamist. The agency says drug and alcohol claims are lumped into one category, leaving no room to answer questions specifically about marijuana.

“They might be savvy enough not to put it directly in the petition as a negligence charge. It’s absolutely still used to alienate parents from their children and to kind of slow down the reunification process,” said Emma Ketteringham, executive director of the family advocacy firm at Bronx Defenders, a nonprofit public defender.

Policy versus practice

An ACS spokesperson said the agency’s official policy is not to remove children based solely on a parent or caregiver’s use of marijuana.

“When ACS investigates a case involving an allegation of parental drug/alcohol abuse (regardless of substance), ACS policy and practice is to assess the impact of any abuse on child safety,” said agency spokeswoman Marisa Kaufman. “Furthermore, the decision to remove a child from their home is always reviewed by a family court judge and no child is placed in foster care without court approval.”

The agency has used a similar message to explain its treatment of parental marijuana use for more than a decade. But in the years before marijuana was legalized in the state, families and attorneys argued the agency failed to follow that policy in practice, with parents pointing to petitions in which the only evidence of neglect offered is the alleged use of the drug by a parent. .

Now, after legalization, they said the same stigma persists, both against people who use marijuana recreationally and – according to some lawyers and advocates – against parents with medical marijuana prescriptions. The use of marijuana for medical purposes was legalized in New York in 2014.

“We’ve seen ACS question the validity of the prescription both by wanting to speak directly with a doctor, or by questioning the veracity or authenticity of the prescription – and then going further by even questioning the medical decision. to prescribe marijuana,” said Nila Natarajan, supervising attorney and policy adviser at the Brooklyn family defense firm Defender Services.

Asked about the allegation, ACS repeated its assertion that it reviews all cases in the context of child safety.

But Natarajan and others argue that the agency describes these parents as using marijuana to medicate themselves and as a result showing signs of mental instability.

“Let’s say that parent is also seeing a mental health professional,” Natarajan said. “We’ve seen ACS go to the mental health professional and say, ‘Oh, do you know this person is being prescribed marijuana? What is your assessment of his marijuana use? Is it really okay for them to use marijuana?'”

The Cannabis Bill signed into state law in 2021 notes that “the mere fact that an individual consumes cannabis, without separately concluding that the physical, mental or emotional state of the child was or was imminently impaired…will not be sufficient” for proof of negligence.

But critics say ACS continues to flout the new measures.

“It’s actually incomprehensible why any agency would continue to pursue these types of cases, when the law clearly prevents them from being able to do so when there is no harm to a child,” Melissa said. Moore, director of civil systems reform. to the Drug Policy Alliance, a national organization that has long opposed the “war on drugs.”

Some family defense attorneys say it’s an attempt to label some people unfit to be parents.