As New York considers legalizing marijuana, attention is also turning to how the drug plays a role in the city’s child welfare system—one that has the power to remove children from their parents and that investigates, almost exclusively, low-income families of color.
Parents and advocates have reported that recreational marijuana use can lead to investigations of child maltreatment by the city’s Administration for Children’s Services. Many times these investigations stem from testing pregnant women and their newborns at the city’s public hospitals, according to testimony at a City Council hearing on Wednesday.
Queens Councilwoman Adrienne Adams called the practice “the systemic criminalization of women of color,” which comes with the threat of separating children and parents.
“We are absolutely tearing families apart, needlessly,” Adams said.
The council is putting forward legislation requiring more reporting from ACS on how marijuana plays a role in its investigations.
Shakira Kennedy, a 29-year-old mother of three children, told Council members that she was tested for marijuana when she was pregnant with twins, after disclosing to a doctor that she used pot to help with extreme nausea. To underscore her point, she noted that she weighed about 160 pounds before her pregnancy but dropped to less than 110 pounds during pregnancy.
Kennedy said she did not consent to the drug test, but was tested anyway. Once her twins were born, a doctor told her he needed to report the toxicology test to child welfare. She said the Administration for Children’s Services came to the hospital while she was recovering from the birth.
“On my third day, ACS met me at my bedside and gave me the paper letting me know they’re launching a 60-day investigation,” said Kennedy.
She said she was required to attend a drug treatment program for several hours a day, multiple times per week, with her newborn twins in tow.
“I do not drink, I don’t smoke cigarettes,” Kennedy said. “I’m a hard-working, tax-paying citizen, and none of that was taken into consideration.”
Both state law and the official policy of the Administration for Children’s Services stipulates that drug use alone cannot support allegations of child neglect. Rather, drug “misuse” must lead to a parent not being able to take care of a child.
David Hansell, the ACS commissioner, reiterated that policy on Wednesday.
“Neither a positive drug test of a parent, nor a positive toxicology of a newborn baby, is in itself a basis for a determination that evidence of abuse or neglect exists,” Hansell said.
But in practice, marijuana plays a recurring and outsized role in child neglect cases, according to public defenders who testified on Wednesday.
While marijuana can’t be the sole reason for a child abuse case, it is often used as a barrier to reuniting a parent and child, said Nila Natarajan, a supervising attorney at Brooklyn Defender Services. Often the Administration for Children’s Services requires onerous and lengthy drug treatment programs in order to close a case, plus ongoing drug testing, she said, even when parents repeatedly test negative for the drug.
“This demanding schedule can severely limit our clients’ ability to gain and maintain employment, to pursue an education or even to spend time with their children,” said Natarajan. “I have repeatedly been told by my clients that they have lost their jobs because of the demands of these drug treatment programs.”
Sometimes these neglect cases stem from drug testing pregnant women at the city’s public hospitals. Machelle Allen, senior vice president and the chief medical officer at New York City’s Health and Hospitals Corporation, said the purpose of testing during pregnancy was to ensure that mothers had a full-term pregnancy without complications, and to offer treatment. She contended that obstetricians do not refer positive drug tests of mothers to the state register of child abuse and neglect. Allen said that pediatricians may test newborn babies as well, but that, again, the hospitals’ policy was not to report child neglect solely based on the toxicology report.
Yet, as advocates and two mothers said under sworn testimony, it happens.
Allen noted that it is the policy of Health and Hospitals to only test with the mother’s informed consent, and a mother has a right to refuse. However, consent is not obtained in writing, only verbally between the doctor and mother, Allen said. And the patient is not provided anything in writing about the test or potential consequences. Nor is the hospitals’ testing policy for pregnant women made publicly available.
Brooklyn Councilman Antonio Reynoso said the practice illustrated the institutionalized racism in the system.
“You are institutionally allowing for a process that is very questionable when it comes to consent to dictate the lives of these women and their children,” he said.