*headdesk*
Aug. 18th, 2011 02:19 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
conuly
No Cause for Marijuana Case, but Enough for Child Neglect
The comments are all going "Oh, well, it's illegal, of course, so what did they expect???" but that seems to be to be absurd. Lots of things are illegal, and many of them really are dangerous and harmful to others, but we don't expect for people to lose their children just because they ran a red light or cheated on their taxes! And while I'm not about to claim that the marijuana laws are so unjust that nobody in good conscience could uphold them, neither do I think they have as much merit as, say, laws against shoplifting. Or, I don't know, laws against child abuse, you know, that thing you normally have to do to your kids to get them removed from you?
“Drug use itself is not child abuse or neglect, but it can put children in danger of neglect or abuse,” Mr. Fagan said. “We think the argument that use of cocaine, heroin or marijuana by a parent of young children should not be looked into or should simply be ignored is just plain wrong.”
Well, poverty or drinking can put a child in danger of neglect or abuse, but we don't go around arresting people or taking away their children* just because they happen to be poor or drunk!
*At least, we're not supposed to. Wasn't there a case about taking away children of homeless families where the Supreme Court decided in favor of the families? Because it was stupid?
The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.
The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.
Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.
“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”
Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.
New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.
As states and localities around the country loosen penalties for marijuana, for both recreational and medical uses, they are increasingly grappling with how to handle its presence in homes with children. California, where the medical marijuana movement has flourished, now requires that child welfare officials demonstrate actual harm to a child from marijuana use in order to bring neglect cases, and defense lawyers there say the authorities are now bringing fewer of them.
But in New York, the child welfare agency has not shied from these cases. For these parents, the child welfare system has become an alternate system of justice, with legal standards on marijuana that appear to be tougher than those of criminal courts or, to some extent, of society at large. In interviews, lawyers from the three legal services groups that the city hires to defend parents said they saw hundreds of marijuana cases each year, most involving recreational users.
The lawyers said they currently had more than a dozen cases on their dockets involving parents who had never faced neglect allegations and whose children were placed in foster care because of marijuana allegations.
Lauren Shapiro, director of the Brooklyn Family Defense Project, which defends most parents facing neglect charges in Family Court in Brooklyn, said more than 90 percent of the cases alleging drug use that her lawyers handle involve marijuana, as opposed to other drugs.
“There is not the same use of crack cocaine as there used to be, so they are filing these cases instead,” Ms. Shapiro said.
Marijuana is the most common illicit drug in New York City: 730,000 people, or 12 percent of people age 12 and older, use the drug at least once annually, according to city health data.
Over all, the rate of marijuana use among whites is twice as high as among blacks and Hispanics in the city, the data show, but defense lawyers said these cases were rarely if ever filed against white parents.
Michael Fagan, a spokesman for the Administration for Children’s Services, said the defense lawyers were offering a simplistic portrayal of these cases.
“Drug use itself is not child abuse or neglect, but it can put children in danger of neglect or abuse,” Mr. Fagan said. “We think the argument that use of cocaine, heroin or marijuana by a parent of young children should not be looked into or should simply be ignored is just plain wrong.”
Mr. Fagan said most of the cases involved additional forms of neglect, like a child who is not going to school or who has been left unattended.
“In other times, we find that admitted marijuana use masks other substance abuse,” Mr. Fagan said.
But lawyers for parents countered that the agency often brought neglect charges based solely on recreational marijuana use, then searched later for other grounds to bolster cases.
“In some cases, there are other allegations, but we think they are add-ons,” said Susan Jacobs, executive director of the Center for Family Representation, which works in Manhattan and Queens. “The reason the person is being brought into Family Court is the marijuana use.”
Ms. Jacobs cited the case of a former client, Jose Gunnell, 23, of Harlem, who lost custody of his 1-year-old daughter in March after an employee at a homeless shelter where he was staying found a $5 bag of marijuana in his room during an inspection.
Mr. Gunnell said in an interview that he stopped smoking marijuana in 2010 but that he used it again in March after having an infected tooth pulled. “The wound wouldn’t close,” he said. “I was getting hungry, but I couldn’t eat. I bought weed.”
The neglect petition that the Administration for Children’s Services filed against Mr. Gunnell shows that he admitted to smoking marijuana to develop an appetite.
The agency’s petition also said that his daughter did not always have adequate clothing, that shelter workers once smelled alcohol on Mr. Gunnell’s breath and that his room was dirty and had an odor.
The agency would not comment on Mr. Gunnell’s case or on others described by defense lawyers, citing confidentiality rules.
Ms. Jacobs acknowledged that the Administration for Children’s Services might at times correctly determine that marijuana use was one of many serious problems in a family, but she contended that those were only a minority of the cases.
State law makes possession of as much as 25 grams of marijuana — enough for 20 or 30 marijuana cigarettes — a violation similar to a traffic offense, punishable by a fine of up to $100. The Administration for Children’s Services does not track the number of parents facing marijuana allegations. It compiles statistics only on the total number of neglect cases for drugs and alcohol, rather than for individual drugs. There were 4,891 such cases in 2010.
State law considers a child neglected if his or her well-being is threatened by a parent who “repeatedly misuses” a drug. But the law does not distinguish marijuana from heroin or other drugs. The law says that if parents have “substantial impairment of judgment,” then there is a presumption of neglect, but it does not refer to quantities of drugs.
Furthermore, the law does not require child welfare authorities to catch parents while they are high or with drugs in their possession. Simply admitting past use to a caseworker is grounds for a neglect case.
In marijuana cases, as in all others, caseworkers have the obligation to remove children who they believe are in imminent danger, but they can recommend that the agency file neglect charges against the parents without removing the children. They can also close cases for unsubstantiated allegations.
Neglect findings, while sometimes allowing parents to keep their children, can have serious repercussions. They prohibit parents from taking jobs around children, like driving a school bus or working in day care, or from being foster care parents or adopting. And they make it easier for Family Court judges to later remove children from their homes.
The findings stay on parents’ records with the Statewide Central Register until their youngest child turns 28.
The policy of the Administration for Children’s Services to pursue marijuana cases is not widely known. But when told of it, some lawmakers said the agency was overstepping its authority.
“I would hope that A.C.S., knowing what a wide-net strategy the N.Y.P.D. is using, would treat marijuana arrests with a grain of salt,” said Brad Lander, a Democratic city councilman from Brooklyn. “A neglect charge should not be leveled.”
Ms. Harris, the woman briefly held in custody in the Bronx, said the police had searched her apartment because they believed drugs were being sold there, an allegation that she denied. She said the small bags of marijuana the police found belonged to her boyfriend and were for his personal use. She tested negative for drugs after she was released.
The Administration for Children’s Services filed neglect charges about a week after Bronx prosecutors declined to press charges. Ms. Harris was represented by the Bronx Defenders, a nonprofit organization that provides legal assistance to Bronx residents.
In a hearing the next day, the agency agreed to return Ms. Harris’s son on the condition that her boyfriend not return to the home, that she enroll in therapy and submit to random drug screenings, and that caseworkers could make announced and unannounced visits to her home. Ms. Harris’s case was closed in April without a finding of neglect.
But here, read this comment, which is marked out specially in the comments:
I have 15+ years of experience in working the NYS child welfare system.
Firstly "Simply admitting past use to a caseworker is grounds for a neglect case." is contradictory to the foundations of child welfare law in NY which require that whatever the condition or concern there must be a demonstrated effect on a child, that effect being harm or a substantial risk of harm to warrant any intervention.
Admitting past use of any drug, in and of itself, is insufficient to meet this standard. The Administration for Children's Services (ACS) seemingly far exceeded the limits of the law in removing the son in this case (based on the reported facts). The standard for removal in NYS is evidence of imminent danger to a child. This standard is not met by the mere presence of marijuana in the home. If the parent in question in the article was truly a licensed foster parent, caring for her niece, then the standards for her in that role are understandably significantly higher. I would not be surprised if ACS' action in this case was in part motivated by anger at this parent's failure to to meet the higher standards required of a licensed foster parent. If this is the case, punishing this parent by removing both of these children from her care indisputably caused more harm to the children than was posed by the presence of a drug in this home.
For comparison, consider the danger posed by the cleaners under most people's sink, or perhaps the legally prescribed drugs in many people's medicine cabinets. Is the presence of these substances in a home mutually exclusive with the safety of children in that same home? This type of assessment is what child welfare workers are taught in the first weeks of their employment. It is not complicated.
The comments are all going "Oh, well, it's illegal, of course, so what did they expect???" but that seems to be to be absurd. Lots of things are illegal, and many of them really are dangerous and harmful to others, but we don't expect for people to lose their children just because they ran a red light or cheated on their taxes! And while I'm not about to claim that the marijuana laws are so unjust that nobody in good conscience could uphold them, neither do I think they have as much merit as, say, laws against shoplifting. Or, I don't know, laws against child abuse, you know, that thing you normally have to do to your kids to get them removed from you?
“Drug use itself is not child abuse or neglect, but it can put children in danger of neglect or abuse,” Mr. Fagan said. “We think the argument that use of cocaine, heroin or marijuana by a parent of young children should not be looked into or should simply be ignored is just plain wrong.”
Well, poverty or drinking can put a child in danger of neglect or abuse, but we don't go around arresting people or taking away their children* just because they happen to be poor or drunk!
*At least, we're not supposed to. Wasn't there a case about taking away children of homeless families where the Supreme Court decided in favor of the families? Because it was stupid?
The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.
The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.
Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.
“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”
Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.
New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.
As states and localities around the country loosen penalties for marijuana, for both recreational and medical uses, they are increasingly grappling with how to handle its presence in homes with children. California, where the medical marijuana movement has flourished, now requires that child welfare officials demonstrate actual harm to a child from marijuana use in order to bring neglect cases, and defense lawyers there say the authorities are now bringing fewer of them.
But in New York, the child welfare agency has not shied from these cases. For these parents, the child welfare system has become an alternate system of justice, with legal standards on marijuana that appear to be tougher than those of criminal courts or, to some extent, of society at large. In interviews, lawyers from the three legal services groups that the city hires to defend parents said they saw hundreds of marijuana cases each year, most involving recreational users.
The lawyers said they currently had more than a dozen cases on their dockets involving parents who had never faced neglect allegations and whose children were placed in foster care because of marijuana allegations.
Lauren Shapiro, director of the Brooklyn Family Defense Project, which defends most parents facing neglect charges in Family Court in Brooklyn, said more than 90 percent of the cases alleging drug use that her lawyers handle involve marijuana, as opposed to other drugs.
“There is not the same use of crack cocaine as there used to be, so they are filing these cases instead,” Ms. Shapiro said.
Marijuana is the most common illicit drug in New York City: 730,000 people, or 12 percent of people age 12 and older, use the drug at least once annually, according to city health data.
Over all, the rate of marijuana use among whites is twice as high as among blacks and Hispanics in the city, the data show, but defense lawyers said these cases were rarely if ever filed against white parents.
Michael Fagan, a spokesman for the Administration for Children’s Services, said the defense lawyers were offering a simplistic portrayal of these cases.
“Drug use itself is not child abuse or neglect, but it can put children in danger of neglect or abuse,” Mr. Fagan said. “We think the argument that use of cocaine, heroin or marijuana by a parent of young children should not be looked into or should simply be ignored is just plain wrong.”
Mr. Fagan said most of the cases involved additional forms of neglect, like a child who is not going to school or who has been left unattended.
“In other times, we find that admitted marijuana use masks other substance abuse,” Mr. Fagan said.
But lawyers for parents countered that the agency often brought neglect charges based solely on recreational marijuana use, then searched later for other grounds to bolster cases.
“In some cases, there are other allegations, but we think they are add-ons,” said Susan Jacobs, executive director of the Center for Family Representation, which works in Manhattan and Queens. “The reason the person is being brought into Family Court is the marijuana use.”
Ms. Jacobs cited the case of a former client, Jose Gunnell, 23, of Harlem, who lost custody of his 1-year-old daughter in March after an employee at a homeless shelter where he was staying found a $5 bag of marijuana in his room during an inspection.
Mr. Gunnell said in an interview that he stopped smoking marijuana in 2010 but that he used it again in March after having an infected tooth pulled. “The wound wouldn’t close,” he said. “I was getting hungry, but I couldn’t eat. I bought weed.”
The neglect petition that the Administration for Children’s Services filed against Mr. Gunnell shows that he admitted to smoking marijuana to develop an appetite.
The agency’s petition also said that his daughter did not always have adequate clothing, that shelter workers once smelled alcohol on Mr. Gunnell’s breath and that his room was dirty and had an odor.
The agency would not comment on Mr. Gunnell’s case or on others described by defense lawyers, citing confidentiality rules.
Ms. Jacobs acknowledged that the Administration for Children’s Services might at times correctly determine that marijuana use was one of many serious problems in a family, but she contended that those were only a minority of the cases.
State law makes possession of as much as 25 grams of marijuana — enough for 20 or 30 marijuana cigarettes — a violation similar to a traffic offense, punishable by a fine of up to $100. The Administration for Children’s Services does not track the number of parents facing marijuana allegations. It compiles statistics only on the total number of neglect cases for drugs and alcohol, rather than for individual drugs. There were 4,891 such cases in 2010.
State law considers a child neglected if his or her well-being is threatened by a parent who “repeatedly misuses” a drug. But the law does not distinguish marijuana from heroin or other drugs. The law says that if parents have “substantial impairment of judgment,” then there is a presumption of neglect, but it does not refer to quantities of drugs.
Furthermore, the law does not require child welfare authorities to catch parents while they are high or with drugs in their possession. Simply admitting past use to a caseworker is grounds for a neglect case.
In marijuana cases, as in all others, caseworkers have the obligation to remove children who they believe are in imminent danger, but they can recommend that the agency file neglect charges against the parents without removing the children. They can also close cases for unsubstantiated allegations.
Neglect findings, while sometimes allowing parents to keep their children, can have serious repercussions. They prohibit parents from taking jobs around children, like driving a school bus or working in day care, or from being foster care parents or adopting. And they make it easier for Family Court judges to later remove children from their homes.
The findings stay on parents’ records with the Statewide Central Register until their youngest child turns 28.
The policy of the Administration for Children’s Services to pursue marijuana cases is not widely known. But when told of it, some lawmakers said the agency was overstepping its authority.
“I would hope that A.C.S., knowing what a wide-net strategy the N.Y.P.D. is using, would treat marijuana arrests with a grain of salt,” said Brad Lander, a Democratic city councilman from Brooklyn. “A neglect charge should not be leveled.”
Ms. Harris, the woman briefly held in custody in the Bronx, said the police had searched her apartment because they believed drugs were being sold there, an allegation that she denied. She said the small bags of marijuana the police found belonged to her boyfriend and were for his personal use. She tested negative for drugs after she was released.
The Administration for Children’s Services filed neglect charges about a week after Bronx prosecutors declined to press charges. Ms. Harris was represented by the Bronx Defenders, a nonprofit organization that provides legal assistance to Bronx residents.
In a hearing the next day, the agency agreed to return Ms. Harris’s son on the condition that her boyfriend not return to the home, that she enroll in therapy and submit to random drug screenings, and that caseworkers could make announced and unannounced visits to her home. Ms. Harris’s case was closed in April without a finding of neglect.
But here, read this comment, which is marked out specially in the comments:
I have 15+ years of experience in working the NYS child welfare system.
Firstly "Simply admitting past use to a caseworker is grounds for a neglect case." is contradictory to the foundations of child welfare law in NY which require that whatever the condition or concern there must be a demonstrated effect on a child, that effect being harm or a substantial risk of harm to warrant any intervention.
Admitting past use of any drug, in and of itself, is insufficient to meet this standard. The Administration for Children's Services (ACS) seemingly far exceeded the limits of the law in removing the son in this case (based on the reported facts). The standard for removal in NYS is evidence of imminent danger to a child. This standard is not met by the mere presence of marijuana in the home. If the parent in question in the article was truly a licensed foster parent, caring for her niece, then the standards for her in that role are understandably significantly higher. I would not be surprised if ACS' action in this case was in part motivated by anger at this parent's failure to to meet the higher standards required of a licensed foster parent. If this is the case, punishing this parent by removing both of these children from her care indisputably caused more harm to the children than was posed by the presence of a drug in this home.
For comparison, consider the danger posed by the cleaners under most people's sink, or perhaps the legally prescribed drugs in many people's medicine cabinets. Is the presence of these substances in a home mutually exclusive with the safety of children in that same home? This type of assessment is what child welfare workers are taught in the first weeks of their employment. It is not complicated.
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no subject
Date: 2011-08-20 07:05 am (UTC)When will people learn? Yes, Virginia, that is The Man at the door (even if it happens to be a woman.) They can't come in without a warrant, no matter what they say. You don't tell them anything, no matter what they say. If you're being arrested, you have the right to remain silent and to have an attorney present. If you're not being arrested, you don't talk to them; you shut the door politely in their faces.
We still have a Constitution here, battered and tattered though it be, and one of the main rights we have is to refuse to talk to 'agents' of whatever trumped-up, un-duly appointed agency comes calling.
I don't have a lot of sympathy for people who are dumb enough to narc on themselves. I have to say, I don't have that much for people who get busted for pot, who have never sent one single postcard or e-mail to any representative to ask for legalization.
If everybody who uses were to start leaning on the representatives, we'd have legalization in a couple of years. It's preposterous that it's been illegal this long, for no reason.
"For comparison, consider the danger posed by the cleaners under most people's sink, or perhaps the legally prescribed drugs in many people's medicine cabinets."
Yes, let us consider them. The cleaners under most peoples sinks are poisonous; a child can die from sampling only a tiny bit of some of them. The legally-prescribed DRUGS in the medicine cabinet, and quite a few of the OTC medicines, are also poisonous, and can kill a child who ingests them.
Marijuana is not a drug. It is a medicinal herb - dried leaves and flowers, no different from lavender or rosemary, and no more toxic. If the puppy eats your entire ounce of greenbud, he might throw up (probably because he also ate the bag) but that's it. If the preschooler drinks your entire vial of (non-alcoholic) tincture, she will sleep very soundly, but that's it. The stuff is simply not toxic.
I
no subject
Date: 2011-08-20 09:02 am (UTC)no subject
Date: 2011-08-21 08:40 am (UTC)no subject
Date: 2011-08-21 02:50 pm (UTC)no subject
Date: 2011-08-21 08:30 pm (UTC)"Past use" can include someone with a yearslong history of being clean. Like the AA member with a ten-year pin, "past" users should get credit for current abstinence. And somehow concocting a danger to children out of the PAST is, well, abhorrent.
no subject
Date: 2011-08-22 02:01 am (UTC)'Should' means 'not'
Date: 2011-08-22 01:03 pm (UTC)The linchpin word of that sentence is should, and the word should actually denotes a negation. Specifically, should indicates that the speakers is dissatisfied with reality as it is, wants things to be other than they are, and is claiming mental/moral superiority over others for wanting them so.
"You should... (do something you're not doing)"
"They shouldn't... (do something they are doing)"
"I shouldn't have to... (do or tolerate something you do have to)"
The cold hard truth is that if you're dumb enough to let the cops into your house and give them full confessions of any sort of crime, you probably WILL lose parental rights, regardless of how much you think you shouldn't. You literally cannot take care of your children if you allow strangers to unlawfully enter your home and take them away, because they won't be around to be taken care of.
An even colder, harder truth is that apparently the majority of Americans think this is acceptable, because they're not insisting that their legislators change the unConstitutional laws that allow this to happen.
"Every nation has the government it deserves."
~Joseph de Maistre