Navigating Child Protective Services When You Use Cannabis

As cannabis legalization continues to become more prevalent, one of the major issues plaguing the community is the involvement of Child Protective Services (CPS). More and more cases are surfacing showing that using even CBD during pregnancy or treating your child with CBD can result in the suspension of parental rights. Regardless of state legal status, the federal classification of cannabis puts in a category that can jeopardize child custody.

Parenthood and cannabis are a complex subject, made even more so by the stigma that continues to surround medicating. For those who choose to do so, it is generally because there is nothing else that works, and because medicating with the plant makes them a better parent. This doesn’t always factor into a CPS wellness check, especially when the agency believes there is child endangerment. 

While each case is different, in general, once CPS becomes involved, the life of the parent and child is upended in a traumatic way. Children are separated from their families for indefinite periods, parents lose jobs because of court requirements, and financial distress occurs because of legal costs. The legal costs are often steep because you need a specific type of lawyer to successfully defend your case.

This area of law, which is a unique mix of family, dependency, and criminal defense requires a deep understanding of the nuance involved. Allison Margolin, California attorney and founding member of Margolin and Lawrence, says that not only should a lawyer understand the complexities of CPS and cannabis, but they should have an open mind. Finding this blend in a legal expert is not easy, especially when each state has a specific set of laws about child endangerment and parental drug use as abuse. 

For example, in California, a positive toxicology screen at the delivery of a newborn or a substance-exposed infant don’t call for a report unless other factors are present that show risk to the child. Pamela Tripp, Attorney at Law and Child Welfare Legal Specialist, says CPS workers in California are now being trained to factor a parent having a medical card into their investigation. She says that while it is generally preferable that a person have a card, not having one doesn’t mean your children will be taken away.

“The focus becomes, and this is established through current case law, as to whether the cannabis use impairs their ability to safely parent their children, whether they are medicating in the presence of the children and most importantly, is the frequency and amount of consumption (similar to alcohol which is also a legal drug) ,” Tripp tells High Times.

There are many reasons that CPS may open a case, but the major factors are socioeconomic and racial. One study found that despite substance usage being the same, Black women were ten times more likely to be reported for positive toxicology screenings during delivery. Another study found that Department of Children and Family Services (DCFS)and the Department of Public Health (DPH) in Illinois received more reports from rural regions than urban. It also found that DCFS received more reports about maltreatment of infants that were credible, and questions if that is because the white infants were more likely to test for opioids and cocaine, while Black infants were more likely to test positive for cannabinoids.

In a lot of the stories about CPS involvement, parents are doing everything legally and safely, but sometimes a parent may not be following the law. This could be because they can’t afford or access a medical program, or they live in a state with a limited list for qualifying conditions. They could travel for work or something important and are caught cannabis in a state that doesn’t offer reciprocity to medical patients (meaning you travel from one medical state to another and your card is honored). Having a medical card doesn’t guarantee protection, especially when the federal law views it as Schedule I. 

“As I stated previously, in the area of child welfare practices, I am of the opinion that a medical card provides the parent with credibility, but because there is a conflict between state and federal law, child protective services agencies are not required to accept the card without question because if they want to, they have the ability to lean on federal law,” says Tripp.

Kelley Bruce, co-founder of Cannamommy, found out firsthand that having a medical card doesn’t always protect a parent when CPS was called on her in 2012. Despite living in Colorado and being a medical patient, her outspoken efforts to educate the public about the benefits of cannabis began a difficult legal battle. She was without a support system at the time and had no idea about the first step. After a relentless search, she found representation and fought the charge of consuming a Schedule I illicit drug in front of minors.

Bruce says that during the investigation process with CPS, it’s difficult to have a voice, because you are at their mercy and basically begging them to believe you’re not putting your children in danger. She says that once CPS decides there is criminal activity, they report it to law enforcement. The most important thing to do is keep up with the recent information about local laws to add a layer of protection Bruce points out. 

“It is important that you have information, good information behind you to be able to move conversations forward.  In my community, I am lucky because people listen to us.  It is a difficult conversation, and everyone is uncomfortable and so having a true understanding of the core issues is critical,” Bruce tells High Times. 

Bruce continues to educate the public about the benefits of responsible cannabis use as a parent, moving conversations forward by supplementing the community with access to information. Her nonprofit Cannamommy.org offers an online clinic featuring free 20-minute consultations with board-certified Registered Nurses and reduced-rate webinars and classes for mothers looking for up-to-date legal information and details about cannabis products. Cannamommy also offers a safe space for mothers dealing with CPS to discuss their fears and has an Advocate Program certifying mothers to supply local support for those who need it.

Another resource stemming from experience with CPS is the Family Law and Cannabis Alliance (FLCA), a group co-founded by Sara Arnold aka Sahra Kant, who has thus far dealt with CPS three times. The offers national and state-specific legal guides and resources for parents dealing with CPS. In addition to offering “Parent-Protective Model Language”, the FLCA provides a long list of considerations when dealing with CPS, including advice like not letting anyone in your home without an appointment, and keeping the house and children clean. 

“It is generally better to be cooperative with the agencies, but a parent can always keep in mind that they do not have to disclose everything.  Focus on child-centered answers to their questions and don’t be too worried about testing “dirty” for cannabis, if your use is moderate, intermittent, or even recreational as long as it is not in the presence of the children,” says Tripp.

She emphasizes that a person shouldn’t be required to stop using cannabis if medically prescribed and necessary in order to maintain custody or reunify with children. Some recreational use is permissible if it’s not being consumed in the presence of children. If a parent often leaves young children home alone to buy cannabis, that is an entirely different child safety standpoint from someone who occasionally uses when out with friends and secures a reliable babysitter. 

Tripp makes it clear that comparison is based in generality, and that stories vary on a case-by-case basis. More progress is being made in this area, and resources are starting to exist for parents who constantly live in a grey area. In the meantime, however, there is still little in the way of a comprehensive plan to protect parents from random attacks to their home life.