Hundreds of New Yorkers who have been caught with small amounts of marijuana have had civil child neglect cases brought against them in recent years, even though they were not charged criminally, according to city records and defense lawyers. A small number of parents have even lost custody of their children. These cases are even being brought against parents just for admitting to marijuana use.
New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could be an indicator of serious problems in the way they cared for their children.
In California, where the medical marijuana movement has flourished, child welfare officials must demonstrate actual harm to a child from marijuana use in order to bring neglect cases, but in New York the opposite is true. The child welfare system in NY has become an alternate system of justice, with legal standards on marijuana that appear to be tougher than those of the criminal courts. In interviews with lawyers from the three legal services groups that the city hires to defend parents they said they see 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.
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 data shows that the rate of marijuana use among whites is twice as high as among blacks and Hispanics in the city but defense lawyers said these cases were rarely if ever filed against white parents.
Michael Fagan, a spokesman for the Administration for Children 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.
Lawyers for the parents say that the agency often brought neglect charges based solely on recreational marijuana use, then searched later for other grounds to bolster cases.
State law makes possession of as much as 25 grams of marijuana a violation, similar to a traffic offense, punishable by a fine of up to $100. ACS does not track the number of parents facing marijuana charges, they only comply statistics on the total number of neglect cases for drugs and alcohol, not for individual drugs. There were 4,891 such cases in 2010.
State law considers a child neglected if their well-being is threatened by a parent who “repeatedly misuses” a drug. The law does not distinguish marijuana from 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. Child welfare authorities do not have to catch parents high or with drugs in their possession. An admission of past use to a caseworker is enough for a neglect case.
Caseworkers are obligated 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. Neglect findings, while sometimes allowing parents to keep their children, prohibit parents from taking jobs around children or from being foster care parents or adopting and 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.