register for more free cle the aba free cle series earn up to 18 free credits each year through the...

Register for more FREE CLE www.americanbar.org/cle/free_cle.html


The ABA Free CLE SeriesEarn up to 18 free credits each year through the monthly ABA Free CLE Series featuring leading legal practitioners.

Exclusively available to ABA members



Watch the presentation

Follow who’s presenting

Make the most of today’s webinar

Control your volume

Send questions to faculty

Download the program materials



To Receive CLE Credit for this Program

• You must attend the entire program; partial credit is not available.

• Click on the evaluation link at the end of the program.• Wait for the online request for credit form.• Enter the email address you want you CLE

certificates sent to.• Fill out the online request for credit form completely.• Select a combination of MCLE jurisdictions you want

CLE credit in.• Enter the participation verification code.• After submission, your CLE certificates will be

emailed to you.



The ABA Free CLE SeriesEarn up to 18 free credits each year through the monthly ABA Free CLE Series featuring leading legal practitioners.

Exclusively available to ABA members



Welcome

Pot, Parenting and Government Intervention

Ira Lustbader, Attorney, Children’s Rights, Inc.

Emma Ketteringham, Managing Director, Family Defense Practice, The Bronx Defenders

Jennie Laird, Commissioner, King County Superior Court

Kathryn Wells, MD, FAAP, Clinical Researcher, Kempe Center for the Prevention and Treatment of Child Abuse, Medical Director, Denver Health Clinic at the Family Crisis Center

Christopher Henderson, Director, Rocky Mountain Children’s Law Center



Please submit your faculty questions



Emma Ketteringham, Managing Director, Family Defense Practice,

The Bronx Defenders




www.americanbar.org/cle/free_cle.htmlwww.americanbar.org/cle/free_cle.html

CAPTA

In 2003 Congress amended the Child Abuse Prevention and Treatment Act (CAPTA) to require states to develop policies and procedures (including appropriate referrals to child protection service systems and for other appropriate services) to address the needs of infants born and identified as affected by illegal substance abuse or suffering withdrawal symptoms resulting from prenatal drug exposure.


ASFA

• The Adoption and Safe Families Act of 1997 provides a time line for how quickly a mother must test negative for drugs and achieve abstinence before her rights to her child will be terminated permanently.

• Under ASFA, a petition to terminate the parental rights must be filed (with some exceptions) for a child who is in foster care for fifteen of the last most recent twenty-two months.


Marijuana in Dependency Context

• Alleged substance abuse, often multiple substances including marijuana

• Alleged neglect as a result of excessive use or ongoing marijuana abuse

• Alleged neglect and abuse re: exposing children to “drug traffic”

• Parents without other neglect/abuse allegations, but who use marijuana recreationally


COLORADO LAW

• If pregnant woman report their substance use to their prenatal health care provider and/or have a positive drug test during prenatal care visit, Colorado law prevents that information from being used in criminal prosecution. (C.R.S. 13-25-136)

• Current Colorado law defines a baby testing positive at birth for marijuana, recreational or medical as an instance of child abuse or neglect, which requires a report to social services. (C.R.S. 19-3-102).


Colorado Today

• Is medical marijuana different from recreational marijuana in terms of how the court assesses child abuse?

• NO-according to the law it still depends on the impact to the child.

• Every child needs a safe and appropriate caregiver. If marijuana use affects a person’s ability to supervise, have an emotional connection, and ensure a child’s health and safety then the child could be considered abused or neglected.


What are you seeing in your daily practice?

•We see fewer cases filed that are based solely on marijuana use as opposed to the use of other drugs •We continue to see cases where neglect is alleged based on a woman’s use of marijuana during pregnancy•There is no uniform response to a parent’s use of marijuana•The response to a parent’s use of marijuana varies greatly from Judge to Judge


WA Marijuana Law

• Medical cannabis: RCW 69.51a– Terminal or debilitating medical conditions– Health care professional’s medical judgment– Recommendation, on tamper-resistant paper

• 69.51A.120Parental rights or residential time — Not to be restricted.– A qualifying patient or designated provider – May not have his or her parental rights or residential time with a

child restricted solely due to medical use of cannabis in compliance with the terms of this chapter

– Absent written findings supported by evidence that such use has resulted in a long-term impairment that interferes with the performance of parenting functions as defined under RCW 26.09.004 (emphasis added)

http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.004


WA Marijuana Law

• Recreational marijuana: RCW 69.50– Over 21, may possess less than 1 ounce at a

time, 16 ounces of infused product, 0r 72 ounces of liquid product

– No public use


Medical Cannabis in Dependency Context

• Evidence of terminal or debilitating condition

• Health care provider’s recommendation

• Other treatments previously tried

• Using as recommended/prescribed

• “I have a medical marijuana card”


Does A Positive Test Support A Finding of

Neglect?


Parenting and Use

• Issues to consider– Unsafe living conditions– Lack of supervision– Access to substances– Lack of necessities– Parent not emotionally available


In the Matter of Dante M

The New York State Court of Appeals has stated that MORE than a report of a newborn child’s positive toxicology for a controlled substance is generally required for a neglect determination. “Relying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.”

Whether a positive toxicology for marijuana and a mother’s admission to prior marijuana use are sufficient to establish neglect?

ACS argued that prior use and a positive toxicology is sufficient to establish neglect and that it is not rebutted by showing that the children were never harmed or in danger of harm and were always healthy, well kept, clean and well fed.

The Court disagreed after hearing from an expert regarding marijuana use and determined that a Court cannot infer neglect fro use alone – even a history of use.

ACS has used minor marijuana offenses to investigate parents and in some cases remove children from households. Family Court defense attorneys reported that “90 percent of cases alleging drug use that her lawyers handle involve marijuana, as opposed to other drugs.” Despite that “the rate of marijuana use among whites is twice as high as among blacks and Hispanics in the city,” defense lawyers stated such such cases were “rarely, if

ever” filed against white parents.

http://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html?pagewanted=all&_r=0

http://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests


Positive Test Result?

• Use vs. abuse, when legal in state

• Frequency of testing or 1-time

• Parenting behaviors

• Impact of use on children

• Does use bleed into abuse of the substance?


An estimated 19.5 million Americans, (8.3 percent of the population ages 12 or older) were current users of illicit drugs in 2002, meaning that they used an illicit drug during the month prior to being interviewed.

Overview of Findings from the 2002 National Survey on Drug Use and Health. DHHS Publication No. (SMA) 03–3774, Rockville, MD: Office of Applied Studies, NHSDA Series H-21, Substance Abuse and Mental Health Services Administration, 2003, pp.11, 15.


Despite similar or equal rates of illegal drug use during pregnancy, African American women are TEN TIMES more likely to be reported to child welfare agencies for prenatal drug use.

This is true even though a greater number of white women use illegal drugs, smoke cigarettes and drink alcohol while pregnant.

National Drug Policy Alliance, Race and the Drug War Factsheet; The Guttmacher Report on Public Policy, State Responses to Substance Abuse Among Pregnant Women, (December 2000, Vol. 3, No. 6).


Florida has a law that findings of illicit drug use during pregnancy must be reported to child welfare.

Regardless of the law during a 6-month period - the proportion of white women reported for drug use was 1.1 % whereas for black women it was 10.7%.

Chasnoff IJ, Landress HJ, Barrett ME., The Prevalence of Illicit-drug or alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida, N. Engl. J Med. 1990: 1202-1206.


A study of testing at University of Rochester Hospital found that infants born to black mothers were more likely than those born to white mothers to be screened for illicit drugs regardless of whether they met the NICU guidelines for drug screening.

Screening methods used in the study did not justify the higher rates of screening performed in infants with black mothers: The rate of positive screens for drugs was lower among the black population.

Marc A. Ellsworth, BS, Timothy P. Stevens, MD, MPH, and Carl T. D’Angio, MD, Infant Race Affects Application of Clinical Guidelines When Screening for Drugs of Abuse in Newborns, Pediatrics, (May 17, 2010)


"First in the Nation" special: George W. Bush transcript

February 3, 1999

STEVE COOPER, WMUR CORRESPONDENT

BUSH: . . .I have said many times that there's nothing in my background that would disqualify me for being governor of Texas much less president.

COOPER: What about alcohol?

BUSH: Probably no more so than others that you know. But I quit drinking. I quit drinking for a couple of reasons. One I was drinking too much at times. But remember during this period of life I was a Sunday school teacher. I was a little league coach. I was a husband. I was a dad, but alcohol began to compete with my energies.

http://www.cnn.com/ALLPOLITICS/stories/1999/02/03/fin.transcripts/bush.html


Race and Class Considerations

• Disproportionality of dependency system

• Who is being reported; who reports


Alternatives to Abstinence-Only Treatment?

• Recommendations of treatment providers– Ordered services: substance abuse evaluation

“and follow treatment recommendations” ?

• Ongoing urine testing– Declining THC levels– Expectation of declining use

• Reasonable to expect future total abstinence if substance abuse is parental deficiency?


[“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.”

Mark Hardin, American Bar Association, Foster Care National Legal Resource Center for Child Advocacy(1983)


Harm Reduction Model: A public health approach that seeks to reduce the HARMS associated with drug use. This model recognizes that although abstinence from drugs can be the final stage in a harm reduction approach, every step toward reducing the harms is viewed as positive and is encouraged.

Zero Tolerance Model: Elimination of drug use altogether or abstinence.


Making Your Case

• Evidence of substance abuse

• Evidence of child neglect or abuse

• Behaviors creating serious risk of substantial harm to child

• Evidence re: level of use impacting behaviors– Brief your issue– Offer as attached exhibits: Studies, articles,

treatises, cases from other jurisdictions


Unattended effects of Legalization on Children

• Increase in children ingesting the drug.• Increase issues at school due to possession

and use.• Increased criminal behavior due to drug

sells.• Increased hospitalizations due to using

excessive amounts and being unaware of the danger.

• Edibles.


Unintentional Ingestion of Marijuana

• Children’s Hospital Colorado has reported increases in unintentional marijuana ingestions mostly due to children taking edibles.

• Marijuana edible products are not clearly identified and are made to look like normal candy.

• Parents need more education and safe storage practices.


Unattended effects of legalization on Parents and Families

• Increased danger in the home:-Conflict with State and federal Law so increased home invasions.-Increased use and sales.-Health concerns with indoor marijuana cultivation.-Fire and explosion risks with butane hash oil production.

• Driving under the influence-not consistent practice in Colorado

• Marijuana use when a parent has a substance abuse problem with other drugs.

Seeking obstetric-gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing.


Canadian Research—An Evaluation of Rooming –in Among Substance-exposed Newborns

• Rooming-in is the practice of caring for mother and newborn together in the same room after birth

• Study found it to be both safe and beneficial for substance-exposed newborns.

Abrahams, MacKay-Dunn, et al. 2010.


What the Experts Say About Marijuana:

• 30 years of experience examining the newborns, infants, toddlers, children, adolescents and young adults born to women who used marijuana during pregnancy as being physically harmed or neglected.

• Few reports of mild negative effects in high risk populations on the birth weight or length of infants but effects were no longer present after a few months.

• Cigarettes and alcohol has effects on growth that are much more pronounced.

• Poverty has a negative impact on child health and well being






The Bronx Defenders





Participation Verification Code

5 T 1 5 F S S 5Copy the code above. It is required to receive CLE credit for this program.






The Bronx Defenders





Thank you for joining us

Register now for the upcoming program in the series!

June

Program

Steering Your Firm Through the Fog of the “Cloud”: How to Navigate Before You are NavigatedClinton MikelThe Health Law Partners, P.C.Monday, June 15, 20151:00 PM – 2:30 PM ET



CLE Credit Request Instructions

Please stay online…

The program evaluation link will appear shortly.

Click on the link to take the program evaluation.

After submitting the evaluation, an online request for CLE credit will appear. Fill out this form to receive CLE credit for this program.

register for more free cle the aba free cle series earn up to 18 free credits each year through the...

Documents

cle credit

cle certificates

monthly aba free cle

free credits

medical director

kempe center

treatment of child abuse

child abuse prevention