Source: The Arizona Republic
Pubdate: September 13, 2003
Author: Karina Bland


A Phoenix baby's death by crack cocaine two years ago has sparked one of the most controversial proposals state lawmakers will face next session as they try to reform Child Protective Services.

At issue is whether a positive drug test on a newborn means the baby has been abused.

A finding of abuse would not necessarily mean the child would be taken by the state, but it would give CPS more muscle to get parents to cooperate with services, such as drug treatment and parenting classes. It also would create a record in the event later reports are made on the family.

Karen Gillian, a Gilbert foster mother who takes in drug-exposed newborns, is torn about the issue. Women who are willing to go into drug treatment should get a chance, she said, but not chronic drug abusers. "You want to make sure these kids have a chance."

The state ombudsman said a positive drug test on a newborn should be grounds for CPS to accuse a mother of abuse. The law doesn't allow that now.

A subcommittee of a governor-appointed commission looking at CPS reform initially proposed that a newborn at least be considered neglected if a drug test turns up positive.

But the idea was heavily criticized by women's groups and some medical professionals across the country, and the commission recommended that chronic alcohol and drug abuse should be only a factor for neglect, not a reason for removing a child.

"Right now, if a parent says, 'I'm not going to go into any rehab. I'm going to keep using coke on a daily basis. Get out of my face.' There's nothing CPS can do about it," said Mary Rimsza, a pediatrician and head of the state's Child Fatality Review Board. She is on the CPS commission.

Parents who are high can't feed, nurture and supervise their children well, Rimsza said, adding, "We shouldn't have to wait until the child is injured to remove them."

Yet, a 1998 study by the University of Florida found cocaine-exposed babies who stayed with mothers who were capable of caring for them fared better developmentally after a year than cocaine-exposed babies in state care.

"For the foster children, the separation from their mothers was more toxic than the cocaine," said Richard Wexler, director of the National Coalition for Child Protection Reform in Alexandria, Va.

Although few infants born with drugs in their systems die, experts estimate that 10 percent of all babies born in Arizona, more than 8,000 annually, have been exposed to alcohol or drugs prenatally.

When 10-day-old Anndreah Robertson died in November 2001 of exposure to her Phoenix mother's crack smoking, it set the stage for the current debate.

When news of the case surfaced last year a horrified public demanded action to prevent such tragedies, and Maricopa County Attorney Rick Romley lashed out at CPS for letting the infant go home with her drug-addicted mother.

Already, Anndreah's death has changed the way CPS handles drug-exposed newborns. Caseworkers now respond to such reports within two hours instead of 24. And removals of children because of abuse or neglect are up 20 percent.

On Wednesday, a special legislative committee on CPS heard two radically different proposals for handling cases like Anndreah's. The committee will write proposed legislation for the session that starts in January.

Tracy Wareing, the governor's adviser on children's issues, outlined the commission's recommendation that drug abuse be considered a factor when CPS wrestles with whether to take a child but not be the sole reason for removal.

In Arizona, as in many other states, exposing a child to drugs in the womb is not a crime. Doctors must call CPS if a newborn tests positive for drugs, but no law says prenatal drug exposure means a child has been abused. Child abuse laws do not apply until after a child is born.

"What you're looking for is that mother who is abusing substances to the point that either the baby's health is compromised or her ability to care for the child is compromised," said Janice Mickens of CPS.

In Arizona, committees, commissions and panels have studied the problem of drug-exposed newborns since 1983.

"Yet, at the time (of Anndreah's birth), there still was not a functioning policy to protect that child," said Mark Faull of the Maricopa County Attorney's Office.

The biggest worry about any change in CPS regulations is that pregnant women with drug problems might shy away from getting prenatal care.

If CPS caseworkers did remove babies who tested positive for drugs at birth, even temporarily, Marcia Porter, director of the Crisis Nursery in Phoenix, wondered where the state would put them. In the past year, there has been an 8 percent drop in the number of foster homes. In July, 131 kids needed care and only 46 beds were available.

Lynn Paltrow, director of the non-profit National Advocates for Pregnant Women in New York, said the question should be whether the mother is capable of parenting, not whether a drug test was positive.

The Joint Select Legislative Committee on Child Protective Services is charged with writing possible legislation for next session to reform the agency. Among the issues it hopes to tackle:
  • Whether a positive drug test on a newborn should constitute abuse or neglect;
  • Whether chronic neglect of children should be a felony, as opposed to the misdemeanor charge it carries now;
  • Whether CPS should be independent from the Department of Economic Security;
  • Whether CPS should receive increased funding.

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