A single mother of six, Ms. B worked hard to change the circumstances that cost her the custody of her children.
Her kids desperately wanted to return to their mom, her attorney Natasha Khalfani testified in the Maryland General Assembly in 2022, not revealing her client’s name. Three of the children were being cared for by their father, while the oldest three were placed in foster care. The case stalled for years in court, long after Ms. B was deemed fit to regain custody. What kept her file open was a past positive cannabis test, even though she was going through substance abuse treatment.
In the meantime, two of her kids “declined rapidly” while in foster care, Khalfani said, as do many children of color when separated from their parents. The bill Khalfani and other advocates were pushing for — their third attempt ― would have prevented the harm and damages Ms. B endured by spelling out that Child Protective Services could not separate families solely because the parent used cannabis, Khalfani said at the time.
The Maryland legislation, signed by Gov. Wes Moore earlier this year, went into effect the day cannabis became legal for recreational use in July. It’s a step in the right direction, advocates said.
But family law and cannabis activists are still pushing through a “legal war and a cultural war” for broader change, said Erin Miles Cloud, co-founder of Movement for Family Power, which works to end what it calls the foster system’s policing of families.
Until federal law is changed to make recreational cannabis legal, these advocates said that families are still vulnerable. Under current law, the Department of Justice cannot spend resources that target people or businesses in compliance with state medical cannabis laws, said Morgan Fox, a political director at NORML, a national advocacy organization that supports the legalization of cannabis. But those protections for recreational use don’t exist federally, he said.
State legislation, like the law recently enacted in Maryland, is what will shield parents from having their family separated for “lawful behaviors that [are] objectively safer than alcohol,” Fox said.
The state considers parental substance use an indication of child maltreatment, but only removes the child if there is “immediate danger” or if being in the home is a threat to the “safety and welfare of the child.”
The number of removals has declined in recent years, and removals of a child within two days of a parent taking a drug test has made up only a small percentage of cases since 2020, according to data by the Maryland Department of Human Services.
Nine percent of all newborns in Maryland exposed to alcohol or drugs were taken from their parents in 2020 compared to 6% in 2022. Advocates say the new legislation will help even more.
Some family law attorneys and activists have long pushed back against the child welfare system removing children from their homes, which they say is a form of family policing. Such activism dates back to the war on drugs, when federal and state governments increased budgets for child removal and pushed for adoptions, while also disinvesting in many social services that could have prevented family separations.
Shanta Trivedi, a University of Baltimore assistant professor of law, said there’s an extra layer of stigma and an automatic assumption of harm when cannabis is used by Black and brown parents.
Studies also show that children suffer “complex and long-lasting harms” when placed into foster care, Trivedi wrote in an article in 2019 in the New York University Review of Law & Social Change. Long-term family separation and placement into foster care can lead children to experience anxiety, feelings of loss, alienation and isolation, wrote Trivedi, who is also the faculty director at the Sayra and Neil Meyerhoff Center for Families, Children and the Courts.
The act of removal itself, which can be jarring, often occurs with little notice to the child and is “inherently traumatic” and confusing, Trivedi said. Children are also more likely to face sexual, physical and emotional abuse while in foster care.
Trivedi and Cloud, who was born in Baltimore and recently moved back to the city, say there should be a push towards community-based intervention strategies. But to get to that point, there must be a dismantling of the family policing system, Cloud said.
Both criminal prosecutions and civil investigations concerning parental cannabis use often starts with a sample testing in a hospital or by a medical provider. Black women are more likely than any other racial group to get drug tested in the hospital — one of the largest reporters of cannabis use — and the testing oftentimes is not consensual, studies have found.
National data from the U.S. Department of Health and Human Services shows that in 2020, parental alcohol or drug use was the cause of 39% of all removals and 50.7% of removals of babies under 1 year old.
Advocates say medical professionals often misinterpret the Child Abuse Prevention and Treatment Act, which requires health providers to report the number of newborns testing positive for drug exposure. The act, they say, does not necessarily require an investigation or intervention from Child Protective Services.
Decriminalizing cannabis alone does not mitigate the disproportionate surveillance and separation Black families continue to face, said Lauren Wranosky, a policy and program associate at Pregnancy Justice, a legal advocacy group for pregnant people. Pregnancy Justice advocates like herself still hear from social workers that they don’t remove children solely based on parental cannabis use. But ambiguous definitions, which are fairly common in child welfare law, allow more room for bias, she said.
The law in Maryland, for example, uses broad language, Wranosky said. While it states that cannabis cannot be the sole basis of an investigation, it needs to spell out the exceptions for social workers and health providers.
“As a social worker myself, I see how hard it can be to really exercise your professional judgement without clear guidelines — what is okay and what is not and what are the least punitive interventions I can do to help a family prior to separation,” she said.
Cloud has seen it happen in New York, where she worked for years as a public defender. Social workers often attributed a causal effect to cannabis use — if a child’s school attendance was lacking, for example, the social worker would note cannabis use as a factor.
Cannabis use also can prolong the time parents are caught in the system.
“A lot of times people won’t close a case if someone is still testing positive for cannabis. Even though they technically wouldn’t remove the kid for cannabis, they’ll keep the case open for cannabis,” she said.
“Those are the types of things I worry about happening in Maryland,” she added.
In her experience as a public defender in Maryland, Khalfani said the use of cannabis generally escalates cases that had already been brought to the attention of social services. The continued use, often for medicinal purposes, prevented parents from being reunified with their children or from having unsupervised visitation. That is where the law will likely have its most visible impact, Khalfani said, hopefully speeding up the process for which the children can be returned to their homes.
It gives attorneys a tool to defend clients that are unjustly target for their cannabis use, Khalfani said.