Transcript The ABA Free CLE Series Earn up to 18 free credits each year through the monthly ABA Free CLE Series featuring leading legal.

The ABA Free CLE Series
Earn up to 18 free credits each year through the
monthly ABA Free CLE Series featuring leading
legal practitioners.
Exclusively available to ABA members
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The ABA Free CLE Series
Earn up to 18 free credits each year through the
monthly ABA Free CLE Series featuring leading
legal practitioners.
Exclusively available to ABA members
Register for more FREE CLE
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Welcome
Pot, Parenting and Government Intervention
Ira Lustbader, Attorney, Children’s Rights, Inc.
Emma Ketteringham, Managing Director, Family Defense Practice, The Bronx
Defenders
Jennie Laird, Commissioner, King County Superior Court
Kathryn Wells, MD, FAAP, Clinical Researcher, Kempe Center for the Prevention
and Treatment of Child Abuse, Medical Director, Denver Health Clinic at the Family
Crisis Center
Christopher Henderson, Director, Rocky Mountain Children’s Law Center
Register for more FREE CLE
www.americanbar.org/cle/free_cle.html
Please submit your faculty questions
Ira Lustbader, Attorney, Children’s Rights, Inc.
Emma Ketteringham, Managing Director, Family Defense Practice,
The Bronx Defenders
Jennie Laird, Commissioner, King County Superior Court
Kathryn Wells, MD, FAAP, Clinical Researcher, Kempe Center for the Prevention
and Treatment of Child Abuse, Medical Director, Denver Health Clinic at the Family
Crisis Center
Christopher Henderson, Director, Rocky Mountain Children’s Law Center
Send questions to faculty
Register for more FREE CLE
www.americanbar.org/cle/free_cle.html
CAPTA
In 2003 Congress amended the Child Abuse
Prevention and Treatment Act (CAPTA) to
require states to develop policies and
procedures (including appropriate referrals
to child protection service systems and for
other appropriate services) to address the
needs of infants born and identified as
affected by illegal substance abuse or
suffering withdrawal symptoms resulting
from prenatal drug exposure.
www.americanbar.org/cle/free_cle.html
ASFA
• The Adoption and Safe Families Act of 1997
provides a time line for how quickly a mother
must test negative for drugs and achieve
abstinence before her rights to her child will
be terminated permanently.
• Under ASFA, a petition to terminate the
parental rights must be filed (with some
exceptions) for a child who is in foster care
for fifteen of the last most recent twenty-two
months.
www.americanbar.org/cle/free_cle.html
Marijuana in Dependency
Context
• Alleged substance abuse, often multiple
substances including marijuana
• Alleged neglect as a result of excessive
use or ongoing marijuana abuse
• Alleged neglect and abuse re: exposing
children to “drug traffic”
• Parents without other neglect/abuse
allegations, but who use marijuana
recreationally
www.americanbar.org/cle/free_cle.html
COLORADO LAW
• If pregnant woman report their substance use
to their prenatal health care provider and/or
have a positive drug test during prenatal care
visit, Colorado law prevents that information
from being used in criminal prosecution.
(C.R.S. 13-25-136)
• Current Colorado law defines a baby testing
positive at birth for marijuana, recreational or
medical as an instance of child abuse or
neglect, which requires a report to social
services. (C.R.S. 19-3-102).
www.americanbar.org/cle/free_cle.html
Colorado Today
• Is medical marijuana different from
recreational marijuana in terms of how the
court assesses child abuse?
• NO-according to the law it still depends on
the impact to the child.
• Every child needs a safe and appropriate
caregiver. If marijuana use affects a person’s
ability to supervise, have an emotional
connection, and ensure a child’s health and
safety then the child could be considered
abused or neglected.
www.americanbar.org/cle/free_cle.html
What are you seeing in your daily practice?
• We see fewer cases filed that are based solely on
marijuana use as opposed to the use of other drugs
• We continue to see cases where neglect is alleged
based on a woman’s use of marijuana during pregnancy
• There is no uniform response to a parent’s use of
marijuana
• The response to a parent’s use of marijuana varies
greatly from Judge to Judge
www.americanbar.org/cle/free_cle.html
WA Marijuana Law
• Medical cannabis: RCW 69.51a
– Terminal or debilitating medical conditions
– Health care professional’s medical judgment
– Recommendation, on tamper-resistant paper
• 69.51A.120
Parental rights or residential time — Not to be restricted.
– A qualifying patient or designated provider
– May not have his or her parental rights or residential time with a
child restricted solely due to medical use of cannabis in
compliance with the terms of this chapter
– Absent written findings supported by evidence that such use has
resulted in a long-term impairment that interferes with the
performance of parenting functions as defined under
RCW 26.09.004 (emphasis added)
www.americanbar.org/cle/free_cle.html
WA Marijuana Law
• Recreational marijuana: RCW 69.50
– Over 21, may possess less than 1 ounce at a
time, 16 ounces of infused product, 0r 72
ounces of liquid product
– No public use
www.americanbar.org/cle/free_cle.html
Medical Cannabis in
Dependency Context
• Evidence of terminal or debilitating
condition
• Health care provider’s recommendation
• Other treatments previously tried
• Using as recommended/prescribed
• “I have a medical marijuana card”
www.americanbar.org/cle/free_cle.html
Does A Positive Test
Support A Finding of
Neglect?
www.americanbar.org/cle/free_cle.html
Parenting and Use
• Issues to consider
– Unsafe living conditions
– Lack of supervision
– Access to substances
– Lack of necessities
– Parent not emotionally available
www.americanbar.org/cle/free_cle.html
In the Matter of Dante M
The New York State Court of Appeals has
stated that MORE than a report of a newborn
child’s positive toxicology for a controlled
substance is generally required for a neglect
determination. “Relying solely on a positive
toxicology result for a neglect determination
fails to make the necessary causative
connection to all the surrounding
circumstances that may or may not produce
impairment or imminent risk of impairment in
the newborn child.”
www.americanbar.org/cle/free_cle.html
Whether a positive toxicology for marijuana and a mother’s admission to prior
marijuana use are sufficient to establish neglect?
ACS argued that prior use and a positive toxicology is sufficient to establish neglect
and that it is not rebutted by showing that the children were never harmed or in
danger of harm and were always healthy, well kept, clean and well fed.
The Court disagreed after hearing from an expert regarding marijuana use and
determined that a Court cannot infer neglect fro use alone – even a history of use.
ACS has used minor marijuana offenses to investigate parents
and in some cases remove children from households. Family
Court defense attorneys reported that “90 percent of cases
alleging drug use that her lawyers handle involve marijuana, as
opposed to other drugs.” Despite that “the rate of marijuana use
among whites is twice as high as among blacks and Hispanics in
the city,” defense lawyers stated such such cases were “rarely, if
ever” filed against white parents.
http://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests
-lead-to-child-neglect-cases.html?pagewanted=all&_r=0
Positive Test Result?
•
•
•
•
•
Use vs. abuse, when legal in state
Frequency of testing or 1-time
Parenting behaviors
Impact of use on children
Does use bleed into abuse of the
substance?
www.americanbar.org/cle/free_cle.html
An estimated 19.5 million Americans,
(8.3 percent of the population ages 12 or
older) were current users of illicit drugs
in 2002, meaning that they used an illicit
drug during the month prior to being
interviewed.
Overview of Findings from the 2002 National Survey on Drug Use and Health.
DHHS Publication No. (SMA) 03–3774, Rockville, MD: Office of Applied
Studies, NHSDA Series H-21, Substance Abuse and Mental Health Services
Administration, 2003, pp.11, 15.
www.americanbar.org/cle/free_cle.html
Despite similar or equal rates of illegal
drug use during pregnancy, African
American women are TEN TIMES more
likely to be reported to child welfare
agencies for prenatal drug use.
This is true even though a greater
number of white women use illegal
drugs, smoke cigarettes and drink
alcohol while pregnant.
National Drug Policy Alliance, Race and the Drug War Factsheet; The Guttmacher Report
on Public Policy, State Responses to Substance Abuse Among Pregnant Women,
(December 2000, Vol. 3, No. 6).
www.americanbar.org/cle/free_cle.html
Florida has a law that findings of illicit drug
use during pregnancy must be reported to
child welfare.
Regardless of the law during a 6-month
period - the proportion of white women
reported for drug use was 1.1 % whereas
for black women it was 10.7%.
Chasnoff IJ, Landress HJ, Barrett ME., The Prevalence of Illicit-drug or alcohol use
during pregnancy and discrepancies in mandatory reporting in Pinellas County,
Florida, N. Engl. J Med. 1990: 1202-1206.
www.americanbar.org/cle/free_cle.html
A study of testing at University of Rochester Hospital found
that infants born to black mothers were more likely than
those born to white mothers to be screened for illicit drugs
regardless of whether they met the NICU guidelines for drug
screening.
Screening methods used in the study did not justify the
higher rates of screening performed in infants with black
mothers: The rate of positive screens for drugs was lower
among the black population.
Marc A. Ellsworth, BS, Timothy P. Stevens, MD, MPH, and Carl T. D’Angio, MD, Infant Race Affects Application of
Clinical Guidelines When Screening for Drugs of Abuse in Newborns, Pediatrics, (May 17, 2010)
www.americanbar.org/cle/free_cle.html
"First in the Nation" special: George W. Bush transcript
February 3, 1999
STEVE COOPER, WMUR CORRESPONDENT
BUSH: . . .I have said many times that there's nothing in my background that would disqualify me for
being governor of Texas much less president.
COOPER: What about alcohol?
BUSH: Probably no more so than others that you know. But I quit drinking. I quit drinking for a
couple of reasons. One I was drinking too much at times. But remember during this period of life I
was a Sunday school teacher. I was a little league coach. I was a husband. I was a dad, but alcohol
began to compete with my energies.
http://www.cnn.com/ALLPOLITICS/stories/1999/02/03/fin.transcripts/bush.html
www.americanbar.org/cle/free_cle.html
www.americanbar.org/cle/free_cle.html
Race and Class
Considerations
• Disproportionality of dependency system
• Who is being reported; who reports
www.americanbar.org/cle/free_cle.html
Alternatives to
Abstinence-Only Treatment?
• Recommendations of treatment providers
– Ordered services: substance abuse
evaluation “and follow treatment
recommendations” ?
• Ongoing urine testing
– Declining THC levels
– Expectation of declining use
• Reasonable to expect future total
abstinence if substance abuse is parental
deficiency?
www.americanbar.org/cle/free_cle.html
[“M]any people in our society suffer from
drug or alcohol dependence yet remain
fit to care for a child. An alcohol or drug
dependent parent becomes unfit only if
the dependency results in mistreatment
of the child, or in a failure to provide the
ordinary care required for all children.”
Mark Hardin, American Bar Association, Foster
Care National Legal Resource Center for Child
Advocacy(1983)
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Harm Reduction Model: A public health
approach that seeks to reduce the HARMS
associated with drug use. This model
recognizes that although abstinence from
drugs can be the final stage in a harm
reduction approach, every step toward
reducing the harms is viewed as positive and
is encouraged.
Zero Tolerance Model: Elimination of drug use
altogether or abstinence.
www.americanbar.org/cle/free_cle.html
Making Your Case
• Evidence of substance abuse
• Evidence of child neglect or abuse
• Behaviors creating serious risk of
substantial harm to child
• Evidence re: level of use impacting
behaviors
– Brief your issue
– Offer as attached exhibits: Studies, articles,
treatises, cases from other jurisdictions
www.americanbar.org/cle/free_cle.html
Unattended effects of
Legalization on Children
• Increase in children ingesting the drug.
• Increase issues at school due to
possession and use.
• Increased criminal behavior due to drug
sells.
• Increased hospitalizations due to using
excessive amounts and being unaware of
the danger.
• Edibles.
www.americanbar.org/cle/free_cle.html
Unintentional Ingestion of
Marijuana
• Children’s Hospital Colorado has reported
increases in unintentional marijuana
ingestions mostly due to children taking
edibles.
• Marijuana edible products are not clearly
identified and are made to look like normal
candy.
• Parents need more education and safe
storage practices.
www.americanbar.org/cle/free_cle.html
Unattended effects of legalization
on Parents and Families
• Increased danger in the home:
-Conflict with State and federal Law so increased
home invasions.
-Increased use and sales.
-Health concerns with indoor marijuana cultivation.
-Fire and explosion risks with butane hash oil
production.
• Driving under the influence-not consistent practice in
Colorado
• Marijuana use when a parent has a substance abuse
problem with other drugs.
www.americanbar.org/cle/free_cle.html
Seeking obstetric-gynecologic care should not expose a woman to criminal or civil penalties,
such as incarceration, involuntary commitment, loss of custody of her children, or loss of
housing.
Canadian Research—
An Evaluation of Rooming –in Among
Substance-exposed Newborns
• Rooming-in is the practice of
caring for mother and
newborn together in the
same room after birth
• Study found it to be both safe
and beneficial for substanceexposed newborns.
Abrahams, MacKay-Dunn, et al. 2010.
www.americanbar.org/cle/free_cle.html
What the Experts Say About
Marijuana:
• 30 years of experience examining the newborns,
infants, toddlers, children, adolescents and young
adults born to women who used marijuana during
pregnancy as being physically harmed or neglected.
• Few reports of mild negative effects in high risk
populations on the birth weight or length of infants but
effects were no longer present after a few months.
• Cigarettes and alcohol has effects on growth that are
much more pronounced.
• Poverty has a negative impact on child health and well
being
www.americanbar.org/cle/free_cle.html
Please submit your faculty questions
Ira Lustbader, Attorney, Children’s Rights, Inc.
Emma Ketteringham, Managing Director, Family Defense Practice,
The Bronx Defenders
Jennie Laird, Commissioner, King County Superior Court
Kathryn Wells, MD, FAAP, Clinical Researcher, Kempe Center for the Prevention
and Treatment of Child Abuse, Medical Director, Denver Health Clinic at the Family
Crisis Center
Christopher Henderson, Director, Rocky Mountain Children’s Law Center
Send questions to faculty
www.americanbar.org/cle/free_cle.html
Participation Verification Code
5T15FSS5
Copy the code above. It is required to
receive CLE credit for this program.
www.americanbar.org/cle/free_cle.html
Please submit your faculty questions
Ira Lustbader, Attorney, Children’s Rights, Inc.
Emma Ketteringham, Managing Director, Family Defense Practice,
The Bronx Defenders
Jennie Laird, Commissioner, King County Superior Court
Kathryn Wells, MD, FAAP, Clinical Researcher, Kempe Center for the Prevention
and Treatment of Child Abuse, Medical Director, Denver Health Clinic at the Family
Crisis Center
Christopher Henderson, Director, Rocky Mountain Children’s Law Center
Send questions to faculty
www.americanbar.org/cle/free_cle.html
Thank you for joining us
Register now for the upcoming program in the series!
Steering Your Firm Through the Fog of the
“Cloud”: How to Navigate Before You are
Navigated
Clinton Mikel
The Health Law Partners, P.C.
Monday, June 15, 2015
1:00 PM – 2:30 PM ET
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