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NAPW Analysis of Washington D.C.'s:
"Improved Child Abuse Investigations Amendment Act of 2001"
and
the "Infant Protection Act of 2001"

Introduction

In the Fall of 2001, the Washington D. C. City Council proposed two bills the Improved Child Abuse Investigations Amendment Act of 2001 and the Infant Protection Act of 2001. These bills both appear to be a response to a Washinton Post series that soundly critizesd D.C.’s child welfare system on numerous ground, including its failure to track and protect children placed into its foster care system. ( )  Rather than address the numerous failings, DC counsel members proposed two bills that would treat any evidence of prenatal exposure to an illegal drug as evidence of civil child neglect. Based on research, science, and experience it is clear that these bills will not protect children, but instead will unnecessarily entangle families—particularly families of color– in a system that is poorly prepared to judge or handle issues involving claims of drug use. Below we address some of the key myths and issues associated with the proposed legislation.



MYTH # 1: A WOMAN WHO USED DRUGS WHILE PREGNANT WOULD BE UNABLE TO CARE FOR HER CHILD ONCE BORN.

The primary purpose of the child welfare laws is to protect children from harm. In order to do that the question that must be asked is whether a parent is capable of parenting - not whether an unconfirmed drug test indicates that a parent has once smoked marijuana or used any variety of drug, legal or illegal.

Research fails to support the assumption that a parent who uses any amount of any illegal drug will harm his or her children or will be unable to provide them with a loving home. A single, positive drug test cannot determine whether a person occasionally uses a drug, is addicted, or suffers any physical or emotional disability from that addiction. Indeed, there are many reasons why a person might be unable to parent, including mental illness, failure to take medication for chronic illnesses such as diabetes, and use of alcohol. But, we would never report someone as a suspected child abuser or presume his or her parental unfitness based only on the knowledge that a person has had a mental illness, or is a diabetic, or drinks alcohol.

Most importantly, a single drug test simply is not predictive of a person's parenting ability. As Susan C. Boyd, in her recent book Mothers and Illicit Drugs: Transcending the Myths, found, there is no significant difference in childrearing practices between addicted and non-addicted mothers. This includes mothers who use cocaine who have been found to look after and care for their children adequately. ( )  As a report published by the American Bar Association concluded: [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." ( ) 

Finally, the fact that the particular drug used or behavior indicated is illegal is not the relevant question for child welfare purposes. Child welfare experts agree that the purpose of civil child welfare laws is to protect children from future harm and not to punish parents for past wrongdoing.

MYTH # 2: ALL DRUG-EXPOSED CHILDREN ARE SERIOUSLY DAMAGED AT BIRTH.

Some newborns exposed prenatally to some substances do suffer adverse short or long-term consequences. These infants include those whose mothers lacked access to quality prenatal care and adequate nutrition, smoked or drank while pregnant, or used fertility-enhancing medications that cause multiple births associated with prematurity and other life-threatening hazards. ( )  However, sensational, inaccurate, and misleading news reports, especially about crack/cocaine, have convinced many people of the necessity for punitive responses to the problem of drug-exposed children. Even the recent series in the Washington Post perpetuated these myths. For example, one story reported that a baby "suffered withdrawal from the cocaine her mother had used" ( )  even though medically this does not occur. ( )  Today, dozens of carefully constructed studies establish that the impact of cocaine on newborns has been greatly exaggerated and that other factors are responsible for many of the ills previously associated with cocaine use -- with poverty chief among them.

To expand on one example, women who take fertility-enhancing drugs and refuse to reduce their multiple pregnancies place all of their fetuses at grave risk. In many instances of super multiples, one or more of the fetuses/newborns die; all generally require extensive time in the neonatal intensive care unit and many experience lifelong disabilities as a result of premature birth. The substantial likelihood of multiple pregnancies that place at grave risk both mother and babies is thoroughly documented in the professional literature. Despite this, women who use fertility drugs and have multiple pregnancies are generally lauded in the press and rewarded by the public. If one rationale of the proposed bill is that a woman who harms her fetus during pregnancy deserves to have her parenting ability questioned, fairness and logic would require that women who use fertility drugs, work in jobs that expose them to hazardous chemicals, or who are unable to obtain an adequate diet or prenatal care also be subjected to mandatory reporting, investigation, and a presumption of parental unfitness.

MYTH # 3: WOMEN WHO USE DRUGS COULD SIMPLY STOP, AND FAILURE TO DO SO INDICATES DISREGARD FOR THE FUTURE CHILD’S WELLBEING.

Some women who use drugs during pregnancy are not addicted and may, like some people who drink alcohol or smoke cigarettes, use drugs only on an occasional basis. Other women, however, may be addicted. As the United States Supreme Court ( )  and the health community ( )  however have long recognized, drug addiction is an illness that benefits from appropriate treatment, not punishment. The American Medical Association has unequivocally stated, "it is clear that addiction is not simply the product of a failure of individual willpower. Instead, dependency is the product of complex hereditary and environmental factors. It is properly viewed as a disease, and one that physicians can help many individuals control and overcome." ( )  As the California Medical Association concludes:

Prenatal substance abuse by an addicted mother does not reflect willful maltreatment of a fetus, nor is it necessarily evidence that the mother will abuse her child after birth. A woman with a substance abuse problem may genuinely desire to terminate the use of such substances prenatally but may be unable, without access to substance abuse treatment programs, to act on her desire. ( ) 

Unfortunately, few women have access to such programs. Despite the proven efficacy of treatment programs, ( )  and notable attempts to improve access to treatment, there is a severe lack of adequate treatment for everyone, but especially for women. ( )  Research demonstrates that comprehensive treatment programs that do not separate mothers from their children help women and their families. ( )  They are also cost-effective, especially when one compares their price tag to the staggering financial and social costs of separating mother and child. ( ) 

MYTH # 4: TREATING A PREGNANT WOMAN’S DRUG USE AS ABUSE AND REQUIRING CHILD WELFARE INTERVENTION WILL PROTECT CHILDREN AND IMPROVE THEIR HEALTH.

In the 1980s, New York, as a matter of policy, began reporting and investigating all cases where children where exposed prenatally to an illegal drug. A lawsuit was filed on behalf of dozens of families who had newborns removed based on false positives and innocent positives (positive results for drugs prescribed or administered by a health care provider). ( )  As a result of the policy, hospital nurseries were filled with healthy infants and an already overburdened child protective system was overwhelmed with unnecessary referrals. ( )  Eventually this costly and counterproductive policy was stopped as a result of a consent decree reached in response to the lawsuit.

Studies have also found that removing children from their parents’ care can unnecessarily inflict grave harm on the children. ( )  As a result of newly expanded civil neglect laws in some states, "thousands of women have lost custody of their children." ( )  One comprehensive survey of the effects of foster care concluded that "[r]emoving a child from his family may cause serious psychological damage—damage more serious than the harm intervention is supposed to prevent." ( )  Research has also shown that Òthe increasing placement of drug-exposed children in foster care is coupled with poor growth outcomes in the physical, mental and emotional development of these children.Ó ( ) 

Furthermore, the proposed bills may in fact lead to more "child" endangerment. As studies of prenatal care and of drug using pregnant women have found, fear of losing custody of a child deters women from seeking the prenatal health care and drug treatment that can improve both their heath and that of their children. Research by the Southern Regional Infant Mortality Project on barriers to substance abuse treatment for pregnant women found that Òfear of losing their childrenÓ was the greatest deterrent to women. ( )  In fact, South Carolina’s infant mortality rate increased for the first time after a decade of steady decline, following the statewide implementation of laws that treat a pregnant woman’s drug use as presumptive civil neglect as well as a crime. ( ) 

Finally, child welfare workers have woefully inadequate training regarding issues of drug and alcohol abuse. ( )  Indeed, experience around the country indicates that often the decisions they make are not in the best interests of the child. A few examples that are neither exceptional nor unusual include:

California child welfare workers removed children from a mother’s custody based on a positive drug test that was actually a drug given to the pregnant woman during labor. ( )  Workers in Texas and New York removed children from a mother’s custody and put them in costly foster care based on a single positive drug test for marijuana despite the lack of any evidence of harm whatsoever or any indication of neglect or abuse. ( )  In New Jersey, child welfare workers mistakenly view methadone treatment as drug addiction and threatened to remove a child if a woman did not enter a program they selected that would require her to stop her successful methadone treatment. ( ) 

MYTH # 5: A STATUTE TREATING A SINGLE DRUG TEST AS PRESUMPTIVE EVIDENCE OF CHILD ABUSE CAN BE ADMINISTERED FAIRLY.

These laws, if enacted, are likely to be applied in a highly racially discriminatory fashion. In Florida, researchers studied reporting practices under statutes similar to those under consideration here. Researchers found that while white and African-American women used illegal drugs at approximately the same rate (white women slightly higher) African-American women were 10 times more likely to be reported as child abusers. ( )  Similar results were found in Illinois. ( )  This is one reason why African American women and their children are already greatly over represented in child welfare systems across the nation:

In January 1999, Black children made up forty-five percent of the foster care population although they were only fifteen percent of the general population under age eighteen. The disparity is even more alarming in the nation's big cities. Removal of children because of maternal substance abuse has contributed significantly to the increase in numbers of poor Black children pouring into foster care.  ( ) 

Indeed, because these bills do not mandate universal drug testing – of every pregnant woman and newborn, discriminatory application of the laws is all but guaranteed. And while such a provision would be necessary to ensure some measure of fairness, it would be extremely expensive. A 1994 cost estimate in New York concluded that it would cost New York state 26.1 million dollars a year to perform Urine Drug Screens alone and an estimated 95.9 million to include alcohol and confirmatory drug tests. ( )  This money could much more wisely be spent on training mandated reporters and health workers to evaluate effectively true markers of neglect and to establish the comprehensive treatment programs that women and families need and what.

MYTH # 6: SUBJECTING A NEW MOTHER TO A CHILD WELFARE INVESTIGATION REPRESENTS ONLY A MINOR INTRUSION.

Parents and child welfare advocates alike understand that some intrusions on parental rights and family privacy are sometimes necessary to protect children. Nevertheless, it is a grave mistake to assume that a child welfare investigation is a minor intrusion. Indeed, this story will help illuminate the kinds of experiences real families have.

Family friends of ours live in an apartment building next to a neighbor who is hypersensitive to noise. This neighbor had long been unhappy living next door to a family with three children. Her complaints about noise included a threat to call child welfare if this family did not maintain the level of quiet that she demanded. In fact, the family believes that it was this neighbor who eventually made an anonymous call to child welfare alleging that the children were being abused and that one of the parents used drugs.

The parents received a visit from child welfare in the middle of the night. They promptly let in the workers who were allowed to see three healthy children fast asleep in their beds. Nevertheless, because a complaint had been made, they were told that they would both have to report to child welfare office downtown. Both parents took off from work and dutifully reported to the downtown office. Instead of being interviewed as they had expected, they were told that they must provide urine samples for drug screening. No court order was provided, not even an explanation, only the veiled threat that their children might be taken away if they objected. They were then escorted back up town to a dismal testing lab where they were told to wait, fill out consent forms (that required in essence a confession: "I consent to disclosure of all information about the treatment of my condition"), and that they would have to provide a urine sample. Both complied and provided a urine sample. They then also obtained urine screens at their own expense from an independent lab out of concern for quality of testing. They were then required to have two more home visits from child welfare workers who interviewed each family member. Each of these visits required rescheduling work and a complex schedule of after school activities for the children. Although there was never any doubt that these were model parents, the whole family was anxious, worried, and sometimes even depressed at the possibility, no matter how small, that a hostile case worker or bureaucratic mistake might result in removal of their children. Child welfare also required the parents to produce medical records and school attendance records for each child. Both of these demands required the parents to take time from work to gather the paper work from two different schools and the pediatrician. It also required them to have to reveal this embarrassing and upsetting investigation to a variety of people who obtained the records needed.

Even though their urine drug screens were negative, they were told, again without any official order or document, that they had to submit to a second urine drug screen at a time and place required by child welfare. Both parents again missed a half a day of work. Finally, after more than a month of investigation they received an official notice from the state that the complaint was unfounded. Nevertheless, the child welfare worker insisted that she must make another home visit before the case could be formally closed in her office.

This event was very traumatic for the whole family. Adopting a bill that will predictably require investigation of hundreds if not thousands of families who in fact have not ever abused much less neglected their children is an extreme waste of resources and disregard for regard for family well-being.

WHAT SHOULD BE DONE?

The purpose of civil child welfare laws is to protect children from future harm: not to punish parents for past wrongdoing. Accordingly, the Center for the Future of Children recommends that "[a]n identified drug-exposed infant should be reported to child protective services only if factors in addition to prenatal drug exposure show that the infant is at risk for abuse or neglect." ( )  Rather than implement either of the proposed bills, the Council should instead adopt measures that will increase access to appropriate, confidential drug treatment and other health services for pregnant and parenting women. The Council should improve the ability of child welfare workers and mandated reporters to identify and respond to real evidence of abuse or neglect rather than to use any single marker as a substitute for such an evaluation. Many positive alternatives exist to the proposed bills. Among these are:



References

  1. See http://www.washingtonpost.com/wp-dyn/metro/dc/government/lostchildren/.
  2. Susan C. Boyd, Mothers and Illicit Drugs: Transcending the Myths 14-16 (1999) (listing at least fourteen studies demonstrating that women who use illicit drugs can be adequate parents); see also M. Kearney et al., Mothering on Crack Cocaine: A Grounded Theory Analysis, 38 Soc. Sci. & Med. 351, 355 (1994).
  3. American Bar Association, Foster Care Project, National Legal Resource Center for Child Advocacy and Protection, Foster Children in the Courts 206 (Mark Hardin ed., 1983) TA \l ÒAmerican Bar Association, Foster Care Project, National Resource Center for Child Advocacy and Protection, Foster Children in the Courts (M. Hardin ed. 1983)Ó \s ÒAmerican Bar Association, Foster Care Project, National Resource Center for Child Advocacy and Protection, Foster Children in the Courts 206 (M. Hardin ed. 1983)Ó \c 3 . See also Nat’l Council of Juvenile and Family Court Judges, Permanency Planning for Children Project, Protocol for Making Reasonable Efforts to Preserve Families in Drug Related Dependency Cases 17 (1992) (concluding that "Juvenile and family court proceedings are not necessary, and probably not desirable, in most situations involving substance-exposed infants").
  4. For example, the Committee to Study the Prevention of Low Birthweight found numerous behaviors and risk factors besides the use of illegal substances that increase the chances of bearing a low birthweight infant, considered to be the greatest single determinant of infant mortality in the United States. Committee to Study the Prevention of Low Birthweight, Division of Health Promotion and Disease Prevention, Institute of Medicine, Preventing Low Birthweight - Summary 1 (1986) at 1-7. Among the behavioral and environmental factors that contribute to low birth weight are smoking cigarettes, poor nutritional status, exposure to occupational hazards and living at a high altitude.
  5. Sari Harris & Scott Higham, Without Help, Frail Infants Dies, Washington Post (Sept 11, 2001 A01).
  6. See Barry Zuckerman, MD, Drug Exposed Infants: Understanding the Medical Risk 26, 31 in Center for the Future of Children, 1 The Future of Children (Spring 1991) ("A withdrawal syndrome has not been identified and, therefore, at this time it is inaccurate to describe a cocaine-exposed newborn as crack-addicted.").
  7. Research has found that crack-exposed children are not doomed to suffer permanent mental or physical impairment, and that whatever effects may result from the use of this drug are greatly overshadowed by poverty and its many concomitants – poorer nutrition, inadequate housing, health care and stimulation once the child is born. See Deborah A. Frank, MD et. al., Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review, 285 JAMA 1613 (Mar. 28, 2001); Wendy Chavkin, MD, MPH, Cocaine and Pregnancy – Time to Look at the Evidence, 285 JAMA 1626 (Mar. 28, 2001); Hallam Hurt, M.D. et al., Problem-Solving Ability of Inner-City Children With and Without In Utero Cocaine Exposure, 20 Dev. & Beh. Pediatrics 418 (Dec. 1999); Alan Mozes, Poverty Has Greater Impact Than Cocaine on Young Brain, Reuters Health, Dec. 6, 1999. See also Linda C. Mayes et al., The Problem of Prenatal Cocaine Exposure: A Rush to Judgment, 267 JAMA 406 (1992). As yet other researchers explain:
    The "crack baby" on which drug policy is increasingly based does not exist. Crack babies are like Max Headroom and reincarnations of Elvis – a media creation. Cocaine does not produce physical dependence, and babies exposed to it prenatally do not exhibit symptoms of drug withdrawal. Other symptoms of drug dependence – such as "craving" and "compulsion"—cannot be detected in babies. In fact, without knowing that cocaine was used by their mothers, clinicians could not distinguish so-called crack-addicted babies from babies born to comparable mothers who had never used cocaine or crack.
    John P. Morgan & Lynn Zimmer, The Social Pharmacology of Smokeable Cocaine Not All It’s Cracked Up to Be, in Crack in America: Demon Drugs and Social Justice 131, 152 (Craig Reinarman & Harry G. Levine eds., 1997).
  8. See Linder v. United States, 268 U.S. 5, 18 (1925) ("[Addicted persons] are diseased and proper subjects for [medical] treatment."); cf. Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding unconstitutional a state law making narcotic addiction a crime).
  9. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 176 (4th ed. 1994) ("The essential feature of substance dependence is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance related problems. There is a pattern of repeated self-administration that usually results in tolerance, withdrawal, and compulsive drug-taking behavior.").
  10. American Medical Association, Proceedings of the House of Delegates: 137th Annual Meeting, Board of Trustees Report NNN: Drug Abuse in the United States: A Policy Report 236, 241 (1988).
  11. Amicus Curiae Brief of California Medical Association & American College of Obstetricians and Gynecologists, District 9, at 3-4, In Re Adrianna May H., No. 3 Civil CO14203 (Cal. Ct. App. 3d filed June 17, 1993).
  12. ADVANCE \r5 See Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998). TA \l ÒCharles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998)Ó \s ÒCharles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998)Ó \c 3 The Physician Leadership on National Drug Policy reviewed more than 600 peer-reviewed research articles and found that addiction to illicit drugs can be treated with as much success as other chronic illnesses like diabetes, asthma, and hypertension.
  13. See, e.g., Wendy Chavkin, Mandatory Treatment for Drug Use During Pregnancy, 266 JAMA 1556 (1991); Julie Petrow, Addicted Mothers, Drug Exposed Babies: The Unprecedented Prosecution of Mothers Under Drug-Trafficking Statutes, 36 N.Y.L. Sch. L. Rev. 573, 604-06 (1991) (arguing for an increase in federal and state funding for drug treatment programs for women); Molly McNulty, Note, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses, 16 N.Y.U. Rev. L. & Soc. Change 277, 292-303 (1987) (discussing the lack of access to adequate health care); Wendy Chavkin et al., National Survey of the States: Policies and Practices Regarding Drug-Using Pregnant Women, 88 Am. J. Pub. Health 117 (1998); Legal Action Center, Steps to Success: Helping Women with Alcohol and Drug Problems Move From Welfare to Work 3 (May 1999); see also Drug Strategies, Keeping Score, Women and Drugs: Looking at the Federal Drug Control Budget 16-17(1998); Vicki Breitbart et al., The Accessibility of Drug Treatment for Pregnant Women: A Survey of Programs in Five Cities, 84 Am. J. Pub. Health 1658 (1994); see also Elaine W. v. Joint Diseases N. Gen. Hosp., Inc., 613 N.E.2d 523, 524 (N.Y. 1993) (discussing a New York hospital’s refusal to admit pregnant women into its drug detoxification program).
  14. See, e.g., Stephen Magura et al., Effectiveness of Comprehensive Services for Crack-Dependent Mothers with Newborns and Young Children (1998) (discussing New York City’s experience with the Family Rehabilitation Program and citing numerous studies describing how comprehensive, coordinated, holistic treatment is better at engaging pregnant and parenting women); Pregnant, Substance-Using Women, supra note 97; Claire McMurtrie et al., A Unique Drug Treatment Program for Pregnant and Postpartum Substance-Using Women in New York City: Results of a Pilot Project, 1990-1995, 25 Am. J. Drug & Alcohol Abuse 701, 701-02 (1999) (describing a comprehensive model of drug treatment for pregnant and postpartum women that included children and did not view relapse as a failure, concluding that it "seem[ed] to improve mother’s lives, fetal drug exposure, and birth outcome significantly"); see also Practical Approaches, supra note 99 at 68, 97-98.
  15. See Marwick, supra note 11 at 1149 (discussing the fact that drug "treatment costs ranged from $1,800 per patient for outpatient treatment to $6,800 for long-term residential care," which is far less expensive than the $25,900 per year it costs to keep one person in prison); see also The Future of Children, supra note 5, at 14 (noting that "it is extraordinarily costly for government to rear children through foster care, with costs typically around $3,000 per year per child, but reaching as high as $35,000 or even double that when the children have special medical complications"). TA \l ÒCenter for the Future of Children, Recommendations in The Future of Children (Richard F. Behrman ed., 1991)Ó \s ÒCenter for the Future of Children, Recommendations in The Future of Children 13 (Richard F. Behrman ed., 1991)Ó \c 3
  16. Jan Hoffman, Challenge Drug Tests, The Village Voice, July 10, 1990, at 11; see also Class Action Complaint, Ana R. v. New York City Dep't of Social Services (S.D.N.Y. filed on June 7, 1990) (describing numerous cases of children removed without notice based on false positives or positive test results for drugs administered by physicians during labor).
  17. See Laura Lassor, When Success Is Not Enough: The Family Rehabilitation Program and the Politics of Family Preservation 7 (unpublished manuscript on file with NAPW) (describing how "a backlog in investigations and foster care placements caused hundreds of infants to be held in New York City hospitals for as long as several months after they were medically ready for discharge"); Diane Duston, Boarder Babies Straining Hospitals’ Resources, Associated Press, June 23, 1992 (quoting David Liederman, executive director of the Child Welfare League, who asserts that the government should help families in distress solve their problems, instead of focusing on punishment for drug use); see also Denise Paone & Julie Alpern, Pregnancy Policing: Policy of Harm, 9 Int. J. Drug Policy 101, 104 (1998) (noting that as a result of being kept in hospitals for extended periods of time "these children may be condemned to living conditions that pose greater harm to their well-being than the ones from which they were removed");. See also Wendy Chavkin, Drug Addiction and Pregnancy: Policy Crossroads, 80 Am. J. Pub. Health 483 (1990).
  18. See, e.g., Bonita Evans, Youth in Foster Care: The Shortcomings of Child Protection Services (1997); Scott J. Preston, Note, "Can You Hear Me?": The United States Court of Appeals for the Third Circuit Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in Baby Neal v. Casey, 29 Creighton L. Rev. 1653 (1996). See also Dorothy E. Roberts, Access to Justice: Poverty, Race and New Directions in Child Welfare Policy, 1 Wash. U. J.L. & Pol’y 63, 69, 71 (noting that "[c]hildren, even neglected children, typically value and want to maintain a relationship with their parents." And that "[u]necessarily taking children from their families is comparably harmful to children as returning them to dangerous homes.").
  19. Paone & Alpern, supra note 16 at 101.
  20. Michael Wald, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stanford L. Rev. 985 (1975).
  21. Michelle Jackson & Gordon Berry, Motherhood and Drug Dependency: The Attributes of Full-time Versus Part-time Responsibility for Child Care, 29 Int’l J. Addictions 1521 (1994). See, e.g., Bonita Evans, Youth in Foster Care: The Shortcomings of Child Protection Services (1997); Scott J. Preston, Note, "Can You Hear Me?": The United States Court of Appeals for the Third Circuit Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in Baby Neal v. Casey, 29 Creighton L. Rev. 1653 (1996).
  22. Shelly Gehshan, A Step Toward Recovery ii (1993).
  23. See Infant Mortality on Rise in Ô97, Post & Courier (Charleston, S.C.), Feb. 19, 1999 TA \l ÒInfant Mortality on Rise in Ô97, Post & Courier (Charleston, S.C.), Feb. 19, 1999Ó \s ÒInfant Mortality on Rise in Ô97, Post & Courier (Charleston, S.C.), Feb. 19, 1999Ó \c 3 , at B1; See The Annie E. Casey Foundation, Kids Count Data Book 160 (2001), http://www.aecf.org/kidscount/kc2001, (reporting that infant mortality decreased from 11.7 in 1990 to 8.4 in 1996, but increased to 9.6 for 1997 and 1998, the two years following the Whitner decision).
  24. The National Center on Addiction and Substance Abuse at Columbia University, No Safe Haven, iii (January 1999) ("Few caseworkers and judges who decide for these children have been tutored in substance abuse and addiction. While most child welfare officials say they have received some training, usually it involves brief, one-shot seminars that last as little as two hours. For judges, training tends to be on-the-job. Such training is woefully inadequate for the profound decisions that these officials are called upon to make for these vulnerable children.")
  25. Associated Press, Woman Given Labor Sedative Loses Custody of Children, The Sacramento Bee, Feb. 11, 2000 (describing a California woman who lost custody of her newborn and other children for three months based on a drug test of the newborn that reflected a sedative given to the woman during labor);
  26. See, e.g., Cathy Singer, The Pretty Good Mother, Long Island Monthly, Jan. 1990, at 46 (reporting that a mother who had smoked marijuana to ease labor pain lost custody of her baby even though all involved in her case argued she would be an excellent and loving parent); Cathy Zollo, When Policy Meets Reality, Times Record News (Wichita Falls, Texas), Nov. 11, 1999 (reporting a case in which the state took into emergency custody a newborn and three older siblings based on a single positive marijuana test on the newborn); Melissa Hung, Reefer Madness? Angela Took a Hit. And CPS Took Her Babies Away, Houston Press, Nov. 4, 1999, at 8 (reporting another Texas case in which the child welfare agency removed custody of a newborn and a one-year-old sibling based solely on a positive drug test for marijuana).
  27. Case papers on file with NAPW. See also Center for Substance Abuse Treatment, Pregnant, Substance-Using Women 18-21(1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1998; Center for Substance Abuse Treatment, State Methadone Treatment Guidelines 85-93 (1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1991) (discussing efficacy and safety of methadone treatment for pregnant and breastfeeding women).
  28. Ira Chasnoff et al The Prevalence of illicit-drug or alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida, 322 N. Eng. J. Med 1202-1206 (1990).
  29. See Brenda Warner Rotzoll, Black Newborns Likelier to be Drug-Tested: Study, Chicago Sun-Times (Fri March 16, 2001) (noting that "Black babies are more likely than white babies to be tested for cocaine and to be taken away from their mothers if the drug is present, according to the March issue of the Chicago Reporter").
  30. Dorothy Roberts, The Challenge of Substance Abuse for Family Preservation Policy, 3 J. Health Care L. & Pol’y 72, 84 (1999); See also Dorothy E. Roberts, Access to Justice: Poverty, Race and New Directions in Child Welfare Policy, 1 Wash. U. J.L. & Pol’y 63 (1999) ("If an outsider looked at the American child welfare system, she would likely conclude that this is not a system designed to promote the welfare of America’s children. Rather, it is a system designed to regulate, monitor, and punish poor families, especially poor Black families.").
  31. Memorandum from Dr. Wendy Chavkin to Jane Spinak and Danny Greenberg; "Position Paper on Government Action of In Utero Drug or Alcohol Exposure" (May 24, 1996) (on file with NAPW).
  32. Center for the Future of Children, Recommendations, in The Future of Children 8 (Richard F. Behrman ed., 1991) ("[A]n identified drug exposed infant should be reported to child protective services only if factors in addition to prenatal drug exposure show that the infant is at risk for abuse or neglect.").
  33. See Center for Substance Abuse Treatment, Pregnant, Substance-Using Women 6 (1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1998) (discussing the services needed to address successfully the treatment of drug using women, noting that it "is imperative that programs include services designed specifically for women, particularly pregnant women"); see also Center for Substance Abuse Treatment, Practical Approaches in the Treatment of Women Who Abuse Alcohol and Other Drugs 124-26 (1994) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 94-3006) (providing guidance to treatment providers to meet the specific needs of women with substance abuse problems).
  34. See e.g., Patt Denning & Jeannie Little, Harm Reduction in Mental Health, Harm Reduction Communication (Spring 2001). (One can also predict the likelihood of developing problems with drug use based on traumatic experiences: "up to 80% of people with a history of significant trauma will abuse substances."). See also Women and Drug Abuse, NIDA Capsules (June 1994) (Among drug using women, 70% report having been abused sexually before the age of 16; and more than 80% had at least one parent addicted to alcohol or one or more illicit drugs); Marsha Rosenbaum, Women: Research and Policy, in Williams & Wilkins, Substance Abuse 654-65 (1997) ("Researchers have consistently found high levels of past and present abuse in the lives of women drug users. Many have suggested that there is a relationship, if not absolutely causal, between violence experienced by women and drug use"); Jahn L. Forth-Finegan, Sugar and Spice and Everything Nice: Gender Socialization and Women’s Addiction – A Literature Review, in Feminism and Addiction 25 (Claudia Bepko ed., 1991) ("Difficult and physically abusive childhood experiences are reported to be frequent, and the incidence of sexual abuse among alcoholics has been shown to be very high, often as high as 75% of the women in treatment.


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