Losing a child to state custody is akin to a haunting. Only in this case, you are on both sides of it. You are forced to haunt your own self, shadow-walking with your life—not fully in it, not all the way gone—scrambling to complete the series of events that are supposed to see your agency returned.
Once you have a child services case that goes to court, what happens next is up to the judge. A parent can do everything asked of her, walk unwavering down the fine line set forth by the court, and at the end of it all, a judge can still say she’s unfit. At the end of it all, you might never be a mother again. Losing my little girls, and thus losing the “mother” part of my identity, was like being eviscerated. I felt disembodied, unmade. When it first happened, I genuinely believed that I had died and gone to hell. When the initial shock passed and I realized I was alive—but my daughters were gone—I wanted to die. And through all of that, I was also expected to stay sober.
Between one-third and two-thirds of child maltreatment cases are related to parental substance use. Once an allegation involving parental drug use is substantiated, the response typically involves a substance use evaluation and requires adherence to any treatment recommendations it made. For cases that involve the placement of a child in foster care, parents are forced to beat a relentless clock: A federal mandate, set by the Adoption and Safe Families Act (ASFA), means that courts must move to terminate the parental rights when a child has been in foster care for 15 of the past 22 months. The countdown begins the moment the child leaves the home, even for cases that go to trial, which can drag on for months before parents are notified about what services they must complete in order to get back their children. Even without factoring in lengthy trials, referrals for addiction treatment can be slow, inadequate, or out of reach.
When it comes to opioid addiction in particular, effective, evidence-based treatments are available. Medications such as methadone and buprenorphine prevent withdrawal, reduce cravings, and stop users from feeling the full effects of other opioids without causing euphoric highs themselves. These medicines have been deemed the gold standard of care for opioid addiction by virtually every major licensing body, including the World Health Organization and the American Society of Addiction Medicine.
Access to these treatments is not equal. Low-income people without insurance, for example, can have difficulty paying for the prescriptions, which can cost several hundreds of dollars a month out of pocket. Black patients are known to have less access to these medications than their white non-Latinx counterparts, particularly in the case of buprenorphine. And when child protective services (CPS) is involved, lack of access to these treatments, or delays in access, can literally mean the difference between a family being reunified or permanently separated.
Even when patients can access medication, that’s often not enough for court-involved child protection cases. “If one requirement is that they be in some type of drug program, being on methadone alone is not enough,” said Dinah Ortiz, a parent advocate in a New York City public defender’s office. “When they say ‘program,’ they mean counseling or Narcotics Anonymous or some type of group.”
Sometimes, those kinds of referrals mean waitlists that can last months.
In Santa Cruz, California, for example, the only inpatient program that serves pregnant people and people with newborns has just 10 beds. Sadie Smith, who worked at the Janus of Santa Cruz Perinatal inpatient facility, said those 10 beds did not come close to filling the demand for services.
Many of the patients who came through were mothers with child welfare cases, and Smith added it was not uncommon for them to be dropped from care for reasons like talking back to staff, considered a form of noncompliance. With no other options for comprehensive addiction services in the county for these patients, being dropped from care was almost as good as terminating the parental rights themselves.
“If a patient wanted to leave or was discharged early for noncompliance, then it would be a black mark on their CPS case,” recalls Smith. “There was no other option for that kind of care.”
This issue is compounded for parents of color, particularly Black mothers, who are already over-represented in the child welfare system. “Substance abuse is probably one of the hardest allegations in family court because there’s such a morality placed on it, or rather an immorality,” said Michelle Burrell, a former managing attorney for the Family Defense Team with the Neighborhood Defense Service of Harlem. “There’s this idea that if you use substances you’re a bad person or you do bad things, and I think that has remnants in the crack epidemic of the 1980s and how public perception of drug use was portrayed, which I think is very racially linked.”
In the United States, parents of color are statistically more likely to become involved with Child Protective Services. This is particularly true for Black and Native American parents. But it’s not just surveillance; parents of color are also more likely to have their kids taken away. For example, in 2014, Black children made up 13.8% of the total population of kids involved in investigations. But almost a quarter, 22.4% of children entering foster care that year were Black.
The causes of these disparities are complex. Parent advocates, attorneys, and social workers cite cultural misunderstandings as one of the reasons why Black families are harshly judged in child welfare cases, especially when affluent white judges are making the bulk of the decisions. Valerie L’Herrou, a staff attorney at the Center for Family Advocacy in the Virginia Poverty Law Center, offers an anecdote from her state, where Black families comprise 20% of the state population, but around 30% of the child welfare caseload. In this case, the family was seen by a Black judge—and may have been saved by that fact.
“I was speaking to an African American judge who said she had a case where Social Services came to her to seek removal of a child because this mother had smacked her child right in front of a police officer,” recounts L’Herrou. The social worker interpreted the incident as indicative of extreme violence in the home. Essentially, if the mother would behave this way in front of the police, what would she do behind closed doors?
But as L’Herrou explains, “the judge heard the evidence, and saw that the mother said she hit the child in front of police because he was being disrespectful to the officer, and understood this is an African-American boy whose mother needs to impress upon the child that he needs to be respectful to police because he can be killed [during a future police interaction].”
Southwestern Virginia offers another view into the problem of access, this time an issue for rural Americans who need treatment for addiction to drugs. The mountainous region is home to a smattering of small, isolated communities that used to rely on the coal industry and have now sunken into economic depression.
The nearest in-state methadone clinic is hours away. Going to a closer, out-of-state clinic means paying out of pocket for those on Medicaid because it won’t cover services in other states. “What I found is that there are more referrals for drug tests [in rural South Virginia child welfare cases] but fewer referrals for drug treatment,” said L’Herrou. “As far as drug treatment, there is just not the infrastructure in place.”
Slow referrals on the part of agencies can also cause major holdups in cases, even in urban hubs with myriad resources. When a child is removed from the home, child welfare agencies are legally required to make reasonable efforts to help parents remedy the issue that led to removal in order to reunify the family. What exactly constitutes “reasonable efforts” is a metric argued behind family court doors across the nation. But at its most basic, “reasonable efforts” means providing parents with referrals to the services that they are mandated to complete.
“There’s been times when [child services] says they will make a referral and months have gone by. And then it’s our client’s fault because they haven’t entered the program because they haven’t been referred,” said Ortiz. “To the judges, drugs are taboo, and they don’t know the concept of harm reduction or fitting the client with the correct program.”
I live in Broward County, a Miami-adjacent sprawl of cities and towns notorious for being home to a network of drug treatment facilities, detox clinics, and halfway homes of varying quality. If you’ve heard of the “Florida shuffle,” you’ve heard of Broward County. If you haven’t, the term refers to addiction treatment patients who are bounced around from treatment to treatment in South Florida—usually Miami-Dade or Broward counties—sometimes by unscrupulous patient brokers who encourage relapse as a means of capitalizing on patients’ health insurance. Lack of drug treatment is not an issue here. But accessing affordable, evidence-based opioid addiction treatment—namely methadone and buprenorphine—is another story.
My case opened in April 2018, and my trial ended that August. When I lost, my judge ordered me to engage in a slew of services, many of which hinged upon successful completion of a substance use evaluation and the services recommended therein. During the investigation and trial, I had been open about my past addiction to heroin, and the fact that I had been engaged in buprenorphine treatment before moving to Florida from Seattle, Washington, a month before the case was opened. I also admitted that I had spoken with my brother-in-law about the possibility of purchasing marijuana, but ultimately decided against it. Although my opioid use disorder diagnosis was marked as “in remission,” and my hair tests had come back negative for all substances, the judge determined that I was employing poor coping skills by even talking about using marijuana and decided that I required the ongoing substance use services.
It took months to even get a referral from my caseworker to complete a substance use evaluation. By then, my judge had already decided I was taking too long and deemed me noncompliant at my review hearing. After that hearing, I became overwhelmed with a sense of futility and hopelessness, a refrain in child welfare proceedings. Eventually I did use again, but when this came up at my evaluation, the evaluator referred me to detox, despite the fact that I did not have a physical dependency on any drug. This gave me the impression that this particular provider was either inadequate or running some kind of scam.
After that, my caseworker set me loose, telling me to just choose a program and let her know where I was going. Since then, I’ve been picking my way through the county’s addiction treatment offerings, hoping to find something that resembles a decent standard of care. At the end of 2019, I completed intake for a program that appears to mirror the evidence-based buprenorphine program that helped me attain long-term remission from heroin addiction back home in Seattle. My prior experiences with treatment in Florida make me l skeptical that it will be as evidence-based as it claims—and even more concerned that my judge will say it took me too long to get here and allow my mother-in-law to adopt my daughters.
“I think the whole CPS thing is a gigantic issue,” said Justine Waldman, the medical director of Respectful, Equitable Access to Compassionate Healthcare (commonly known as REACH), a harm reduction-oriented buprenorphine clinic in Ithaca, New York.
“One problem is … [parents] will be mandated to a certain form of treatment that CPS feels is the right one despite there not necessarily being any numbers around that.” She cites 28-day inpatient rehab programs as one example she sees recommended by child welfare agencies for patients who relapse, even though she does not find those recommendations medically warranted. Another example she gives is naltrexone, a third form of medication assisted treatment for opioid addiction that has seen success in curbing chaotic use, but has lower patient retention than buprenorphine and methadone because it requires patients to fully detox first.
“I think in these child welfare cases you have individuals at the helm making decisions for people that aren’t data-driven, said Waldman. “And that’s a little scary.”
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