Steve Green has epilepsy. His wife, Maria, has multiple sclerosis. Since 2011, they’ve been growing cannabis for medical use.
Everything they do is perfectly legal under state law in Michigan, where the couple resides. Maria is a registered caregiver—meaning that she’s allowed to grow 12 plants per patient—and both are qualifying patients.
Nonetheless, in 2013 Children’s Protective Services came in and removed the couple’s six-month-old unweaned infant, Bree. According to Steve, “Bree was ordered removed from our home because the judge said it was an inherently dangerous situation, that people could break in to steal the marijuana and steal the baby.”
The removal came despite the fact that the Michigan Medical Marijuana Act notes, “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”
Sara Arnold, the director and co-founder of the Massachusetts-based Family Law and Cannabis Alliance (FLCA), a national nonprofit organization founded in 2013 and dedicated to advocating for medical marijuana parents, said that the Greens’ story is not unique. “It is extremely common,” she said.
She knows a thing or two about it because in addition to being an advocate and policy expert, Arnold is a medical marijuana parent herself.
“I was investigated by CPS for neglect three times for my medical marijuana use,” Arnold said. “My story is common; I was investigated after the birth of my first child after self-disclosure to my prenatal care provider and twice more from mandated reporters.” By law, people in certain professions—or in some states, all citizens—are mandated to report potential or actual neglect and abuse, which specifically includes drug use. She continued, “One of the mandated reporters had never met my child nor seen me parent her and had only read ‘medical marijuana’ in my medical records mentioned by a (supportive) physician; and the other did not want to make the report but believed they were mandated to do so.
“The outcome of these investigations resulted in the allegations not being substantiated and no further action taken by CPS, but investigation by CPS is still an intrusive, traumatic experience for any family—much less three times for the same thing. It is also a huge waste of limited CPS resources that is taking case workers away from real child neglect and abuse.”
Like Arnold, the Greens eventually got their daughter back—but only after six weeks of expensive legal wrangling.
Although the above cases were in Massachusetts and Michigan, those states aren’t cherry-picked examples. Arnold explained that similar situations happen everywhere: “This is a problem throughout the country. Obviously some states are worse than others (like Texas and Florida) but you might find it surprising that even states with mature medical marijuana programs still investigate their patients who are also parents. Even CPS in medical and legal Colorado still regularly and consistently investigate medical marijuana patients.”
Heather Thompson, a molecular biology PhD who works as the deputy director of a nonprofit known as The Elephant Circle, said that often CPS might get involved before the child is even born. Because the Denver-based organization advocates for new mothers, Thompson has become acquainted with the surprising ways in which legalization has played out in Colorado. Instead of creating a more permissive environment, Thompson said that legalization has created among medical professionals a heightened awareness of cannabis and thus some hospitals are now more likely to drug test newborn babies. She said, “That’s where federal law trumps state law—because it is Schedule 1 it is legal for someone at the hospital to test a baby for THC without the parents’ consent or knowledge. Then if they test positive, because it’s for a Schedule 1, then they have to involve CPS.”
She continued, “If a baby tests positive, it’s automatically a charge of neglect and abuse. There is no evidence to say that drug use equals abuse, but because of the climate in Colorado there’s a very punitive attitude toward parents in general who use marijuana.”
Thompson is not the only advocate quick to note the problems caused by conflicting federal and state laws; it’s something Jennifer Ani is very familiar with, too. Ani is a California-based attorney and child welfare specialist who handles cases where legal medical marijuana users and growers find themselves running afoul of CPS.
To some extent, funding is the source of the problem. The Child Abuse Prevention and Treatment Act (CAPTA), was originally enacted in 1974 as a federal law to allocate CPS funding to states that meet certain federal standards. Ani said, “That’s where marijuana comes in. How do you reconcile that with medical marijuana laws?”
After a 2003 revision, CAPTA now requires states to have policies in place to report and address situations in which infants are born “affected” by illegal substance abuse. That can be problematic both because cannabis is still an illegal substance on the federal level and because the line between use and abuse can be unclear.
Ani said that, once the child is born, “Just the fact that a parent is breaking a federal law is not enough to remove a child [in California]. Regardless of the substance, in California, a parent can use any substance they want to as long as they’re not abusing it and that abuse does not affect the child.” Of course, whatever the law says, Ani said that the children of medical marijuana users are still being removed on a regular basis.
“It’s a problem,” Ani said, “because there’s so much ignorance as to the fact that it’s not harmful. Not only is it not harmful but it does not cause serious physical harm, as the law requires.”
In fact, according to Thompson, existing literature doesn’t even support the idea that marijuana use is harmful during pregnancy: “There has been research on pregnancy and marijuana since 1982 and Canada has been doing it since 1978, and there are very few clinical effects of marijuana. It does not seem to affect growth. If you take the literature as a whole, it does not seem to affect babies negatively in a way that can be documented.”
In a sense, Thompson said, it’s like the crack-baby myths of the 1980s and 1990s. The crack-baby myth—the belief that crack cocaine use during pregnancy would cause major damage to the fetus—grew out of a lack of well-designed studies and thus a lack of understanding. Now, medical marijuana users are facing a similar lack of understanding.
As Ani put it, “Families are being separated because of idiocy and incompetence and a failure to understand cannabis.”
As of now, some states—like Michigan—have language that should theoretically protect medical marijuana parents. Unfortunately, it doesn’t quite work out that way. As cited above, the law says that medical marijuana should only affect custody if “the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” However, Arnold explained, “There is no definition of ‘unreasonable danger’ or ‘clearly articulated and substantiated.’ What this has often been interpreted to mean (including in Michigan) is that a) investigation is required of any parent found to use marijuana to ensure that there is no reasonable danger and b) that it can be widely subjective, to the point where the marijuana use itself…can simply be a sign of ‘unreasonable danger.’”
Despite the struggles medical marijuana parents are facing, Arnold remains optimistic. She explained that FLCA offers model language for parent-protective initiatives, such as one that has already been proposed in Massachusetts.
“Marijuana reformers,” she said, “are waking up to the fact that parental rights for patients matter, and social workers are waking up to the fact that it shouldn’t be their job to continue the war on marijuana to the detriment of children and families.”
Keri Blakinger is a writer and prison-reform activist living in upstate New York. A staff writer for The Ithaca Times, she has also been published in The Washington Post and Quartz. She last wrote about the drug policies of the 2016 Presidential Candidates.