{"id":14517,"date":"2011-08-25T21:37:21","date_gmt":"2011-08-26T02:37:21","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=14517"},"modified":"2011-08-25T21:37:21","modified_gmt":"2011-08-26T02:37:21","slug":"does-marijuana-possession-equal-child-neglect","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/08\/does-marijuana-possession-equal-child-neglect\/","title":{"rendered":"Does Marijuana Possession Equal Child Neglect?"},"content":{"rendered":"

\"\"<\/a>According to a recent NewYork Times article<\/a><\/em>, 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.\u00a0 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.\u00a0 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.<\/p>\n

These cases illustrate one of the most difficult problems in child protection law: how do we define what is \u201cgood enough\u201d 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.\u00a0\u00a0 But what about more subtle behaviors, or behaviors that are arguably cultural or lifestyle choices \u2013 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.\u00a0 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.\u00a0 If you starve your child until she suffers from malnutrition, you have maltreated her.\u00a0 However, if you have placed your child on a restricted vegetarian diet, you are arguably making reasonable choices to better her health.\u00a0 Some parents argue that allowing children to sleep in a \u201cfamily bed\u201d with their parents promotes healthy parent-child bonding while other parents claim that these behaviors create the risk of crib death.\u00a0 We live in a diverse society and as a general matter we tolerate wide variations in parenting.<\/p>\n

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.\u00a0 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.\u00a0 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.\u00a0Parents routinely engage in adult behaviors that might be risky for children \u2013 watching R-rated movies, drinking alcohol, having sexual relationships \u2013 but we do not consider these behaviors risky for their kids unless those kids are directly involved or exposed to the behaviors.\u00a0 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.\u00a0 If a toddler walks in while mom and dad are watching Blue Velvet<\/a><\/em>, intervention will not likely be justified \u2013 although if mom and dad were forcing<\/em> the child to watch it, there might well be risk of harm to the child.\u00a0The assessment of risk is largely subjective and context-driven.<\/p>\n

So is it reasonable to remove kids simply because the parents are found to possess small amounts of marijuana?\u00a0 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.\u00a0 Will your children be removed if you get a ticket for going 20 MPH over the limit?\u00a0 Not likely, unless unbelted children are in your car at the time.<\/p>\n

There are at least two very troubling things about foster placements based on parents\u2019 possession of small amounts of marijuana.\u00a0 One problem is that most of the people identified as being in this situation are in lower income brackets, and defense
\nlawyers cited in the New York Times <\/em>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.\u00a0 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.\u00a0 What could possibly justify this discrimination?<\/p>\n

The other troubling thing is that removal to foster care creates a very real risk of emotional harm to the children involved.
\nChildren 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.\u00a0 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 <\/em>indicate larger parenting problems that might<\/em>
\ncause some future harm to the children when we KNOW that removing them from their homes WILL cause immediate and often long-lasting emotional difficulties.<\/p>\n

In my view, New York and other states addressing this problem should follow California\u2019s lead and require child welfare workers to present convincing proof of actual harm to children from their parents\u2019 use or possession of marijuana before<\/em> those children may be taken into protective custody.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 In many of these cases, the amounts of marijuana in question have been too […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[45,122],"tags":[],"class_list":["post-14517","post","type-post","status-publish","format-standard","hentry","category-family-law","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14517","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=14517"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14517\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=14517"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=14517"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=14517"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}