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This Article considers the varying reasons why drug policies informing child welfare interventions are not evolving as part of the drug policy reform movement, which has successfully advocated for initiatives that decrease mass incarceration, end mandatory minimums, and decriminalize or legalize marijuana use and possession. Many existing child welfare laws and policies that address parental drug use rely on the premise that prenatal exposure to a controlled substance causes inevitable harm to a child. Furthermore, they presume that any amount of drug use by a parent places a child in imminent danger, or is indicative of future risk of harm. Child welfare authorities will initiate investigations based on these assumptions, and once a case is opened in family court, the family is often split apart while drug-using parents are assessed, evaluated, and referred to inadequate substance abuse treatment by poorly trained caseworkers.

An analysis of evidence-based studies reveals that there is no scientific determination that exposure to substances like cocaine, methamphetamine, opiates, or marijuana will inevitably cause harm to a fetus. Additionally, research has shown drug use by a parent or parents does not on its own increase threats to child safety or predict future maltreatment. Furthermore, a review of data on court-mandated substance abuse treatment and other services finds that child protective services workers are severely limited in their assessment and evaluation of drug-using parents, and often overlook greater service needs at play, including domestic violence counseling and housing assistance.

Despite being borne out of the same false assumptions and outdated research, child protective services’ response to drug- using parents remains disproportionately punitive while the criminal justice system’s policies on drug offenders are softening. This Article argues that this dichotomy exists, in large part, because the media-spun image of drug offenders has evolved into one that is sympathetic and relatable, while the narrative surrounding drug-using parents remains stagnant: the selfish mother who loves drugs more than her baby. After exploring several reasons why this narrative persists, I suggest that, in addition to advocating for changes to state and federal policies that can positively impact child welfare system-involved families, the drug policy reform movement also must encompass changing public perceptions surrounding drug-using parents through comprehensive family defense practice, domestic human rights documentation, and facts-driven journalism.

Library of Congress Subject Headings

Child welfare, Drug abuse--Social aspects, Drug abuse--Law and legislation