According to a recent NewYork Times article, many New York parents who have been caught with marijuana or who have admitted using it have found themselves charged with child neglect and have even, in some cases, lost custody of their children.  In many of these cases, the amounts of marijuana in question have been too small to bring even misdemeanor charges against the parents for possession.  Nevertheless, the parents have been deemed neglectful and their children have been removed by child protective services, which have placed the kids in foster care for days, weeks or months.

These cases illustrate one of the most difficult problems in child protection law: how do we define what is “good enough” parenting, and what is child abuse or child neglect? In very extreme cases of physical injury or neglect, such as the severe beating or extreme starving of a child, it is easy to see that maltreatment has occurred.   But what about more subtle behaviors, or behaviors that are arguably cultural or lifestyle choices – how do we know when the line has been crossed into abuse? If you beat your child until she is bloody, you have clearly acted abusively.  However, if you have paddled her because your religion advocates corporal punishment, it can be argued that you have acted within your parental prerogative to raise your child the way you believe is proper.  If you starve your child until she suffers from malnutrition, you have maltreated her.  However, if you have placed your child on a restricted vegetarian diet, you are arguably making reasonable choices to better her health.  Some parents argue that allowing children to sleep in a “family bed” with their parents promotes healthy parent-child bonding while other parents claim that these behaviors create the risk of crib death.  We live in a diverse society and as a general matter we tolerate wide variations in parenting.

The usual trigger for state intervention in cases of non-mainstream child-rearing is when the parental behaviors create actual harm or an unacceptable risk of harm to the child.  If you fire a gun aimed at your child but miss hitting her, you do not yet have actual harm (at least not physical harm) but you clearly have created an unreasonable risk justifying state intervention and removal of the child from your custody.  Behaviors like possession and consumption of alcohol or drugs do not cause such clear risk to the children as long as the children are not ingesting the substances or the parents are not so impaired that they cannot care for the children. Parents routinely engage in adult behaviors that might be risky for children – watching R-rated movies, drinking alcohol, having sexual relationships – but we do not consider these behaviors risky for their kids unless those kids are directly involved or exposed to the behaviors.  Moreover, we want to see proof of harm from exposure before the state can remove the children because child removal itself poses huge risks of psychological harm.  If a toddler walks in while mom and dad are watching Blue Velvet, intervention will not likely be justified – although if mom and dad were forcing the child to watch it, there might well be risk of harm to the child. The assessment of risk is largely subjective and context-driven.

So is it reasonable to remove kids simply because the parents are found to possess small amounts of marijuana?  If you are thinking that risk of harm justifying child removal exists because the parents are breaking a law, consider the fact that many parents speed, cheat on their taxes, shoplift, or sneak into movies without paying, but nobody suggests that child removal is warranted unless the children are directly involved and at obvious risk of harm.  Will your children be removed if you get a ticket for going 20 MPH over the limit?  Not likely, unless unbelted children are in your car at the time.

There are at least two very troubling things about foster placements based on parents’ possession of small amounts of marijuana.  One problem is that most of the people identified as being in this situation are in lower income brackets, and defense
lawyers cited in the New York Times article claim that the overwhelming majority are members of minority groups, despite the fact that large numbers of white parents are known to use marijuana at least occasionally.  It is simply unacceptable in my view to use marijuana possession as a proxy for risk of harm to children for minority parents, but ignore possession by white parents.  What could possibly justify this discrimination?

The other troubling thing is that removal to foster care creates a very real risk of emotional harm to the children involved.
Children experience confusion, depression, fear and feelings of insecurity when they are taken away from their families, and the damage often lasts long after they are reunited with their parents.  It is ludicrous to think that it is preferable to take kids away from their parents because the fact that a parent has a marijuana cigarette might indicate larger parenting problems that might
cause some future harm to the children when we KNOW that removing them from their homes WILL cause immediate and often long-lasting emotional difficulties.

In my view, New York and other states addressing this problem should follow California’s lead and require child welfare workers to present convincing proof of actual harm to children from their parents’ use or possession of marijuana before those children may be taken into protective custody.