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How marijuana legalization affects CPS cases

In light of evolving national and state laws on marijuana usage, it’s crucial for parents who use marijuana—whether for medicinal or recreational purposes—to understand the potential impacts on their relationship with their child. Changes in marijuana legislation can have significant implications, including the involvement of Child Protective Services (CPS). This blog post from the Law Office of Bryan Fagan aims to guide you through these dynamic legal landscapes, ensuring you’re well-informed about how these changes could affect your family dynamics.

What are the types of CPS cases which involve drug use?

Using a controlled substance that harms your child, whether emotionally, mentally, or physically, constitutes abuse according to Texas CPS. Likewise, not meeting your child’s needs can lead to a CPS neglect case. The definition of neglect doesn’t specify drug use, but inattention due to substance use often leads to neglect.

Your main responsibility as a parent is to keep your child safe. If your marijuana use endangers your child, CPS may view it as neglect. When a child suffers physical harm due to a parent’s drug intoxication, CPS typically determines it as physical abuse. Also, if a newborn displays birth defects and the mother consumed marijuana during pregnancy, CPS might investigate for abuse.

Exposure to a parent’s marijuana use can cause non-physical injuries such as mental or emotional harm. This exposure might impair the child’s ability to problem solve, perform in school, manage daily tasks, or maintain healthy self-esteem. Ongoing drug use can negatively affect a child’s emotional and mental growth, making it hard to deny the adverse academic impacts of your marijuana consumption.

Neglect is often tied to poor supervision. A CPS report about a child at risk due to marijuana use can have serious repercussions. Using marijuana while children are home during holidays like Christmas break can lead to dangerous situations if you become inattentive.

If your newborn tests positive for marijuana, CPS could open a child abuse case. Even without a positive test, using marijuana during pregnancy might be deemed neglect. Health professionals must report suspected abuse or neglect to CPS, so a positive drug test could trigger an investigation.

CPS may assess your ability to provide a safe home environment. If concerns about your home or caregiving arise, CPS may conduct a home assessment to investigate further.

What about exposing your child to substance abuse before they’re born?

If you use drugs or alcohol while pregnant, anyone can report your behavior to Child Protective Services (CPS), regardless of whether the substance is legal or illegal. Substance abuse during pregnancy increases the risk of your child developing physical or mental impairments. CPS refers to one possible outcome of prenatal substance abuse as an “infant born addicted.” One counterargument is that a baby cannot be born addicted to a substance. Moreover, an infant might test positive for a substance without suffering any harm from it. Nonetheless, such situations can still lead to findings of abuse or neglect by CPS.

Removing your child from your home

Many parents fear Child Protective Services (CPS) might remove their children during investigations, especially in Texas, where the removal rate is below the national average. Nonetheless, substance abuse greatly increases the risk of removal, particularly with frequent mentions of marijuana in such cases.

Neglectful supervision, not child abuse, is the primary reason for removals. This should concern you if you use substances. Being under the influence can lead you to focus too much on the substance, neglecting the needs of your children who cannot care for themselves. Everyday items and features in your home can pose dangers to an unsupervised child.

Even if no injuries occur, you could still encounter serious problems with CPS. The presence of younger children at home heightens the risk of removal due to substance abuse. Young children, unlike older ones who might occupy themselves with electronics, have shorter attention spans and a greater propensity for finding danger in the home.

Finding treatment and keeping your family together 

When Child Protective Services (CPS) starts investigating you for substance abuse, it usually means you need to start counseling or treatment. Depending on the type and severity of the addiction, you might need inpatient or intensive outpatient therapy. Your location in Texas also affects your treatment options; Houston and San Antonio residents have many resources, while those in smaller towns may find options limited.

This situation directly impacts whether you can work with CPS to keep your children at home during rehabilitation. If CPS finds your child at risk of physical harm, they will quickly assess what services can help ensure your children’s safety. Attending therapy alone won’t suffice; the service must immediately address a safety concern for your children.

Substance abuse and other factors combined lead more often to removals

In a CPS case, substance abuse alone seldom results in child removal. However, if substance abuse is linked to additional issues like job loss or physical abuse by a co-parent, these factors greatly increase the risk of your child being removed. These additional elements can compound the risk of harm to your child, either physically or mentally.

Family Based Social Services (FBSS) often serves as an alternative to removing children from their homes during CPS cases. Parents undergoing substance abuse treatment, such as counseling or rehabilitation, can receive support through FBSS, assuming the treatment is outpatient and allows parents to remain at home consistently. If you are in therapy, it’s important to keep CPS informed about the type of treatment you’re receiving.

However, FBSS may not be able to support your family if you lack a solid support system. CPS will request contact information for local extended family who can assist with child care during your treatment or if you’re otherwise unavailable. Without local family or a support network, the likelihood increases that your children may be removed from your home.

To clarify, CPS removes a child from the home only after securing a court order or determining that an emergency justifies immediate removal. Following any emergency removal, CPS must obtain a court order granting them temporary conservatorship. This conservatorship allows CPS to decide the child’s primary residence, medical care, and schooling, effectively making CPS the primary guardian post-removal.

Substance abuse does not need to harm the children directly to lead to the removal

Your child can be removed from your home even if you can show that your substance abuse did not lead to your child being harmed physically or mentally. Specifically with marijuana use, while there are some shifting attitudes in the public associated with marijuana it can still lead to removal due to CPS oftentimes misunderstanding that there can be a difference between substance use, abuse, and how to handle situations that involve either type. Marijuana is legal to be prescribed to treat medical conditions but it is still a crime to possess marijuana recreationally. 

The importance of representation in CPS cases

With so much at stake in a CPS case, it cannot be understated how important it is for you as a parent to be able to secure trustworthy representation early in the process. You can be placed with an attorney early in your CPS case if your child has been removed from your home. However, if your child is not removed from your home then you will not be in a position where the court can appoint you with an attorney. 

What we have found is that the earlier you can have representation in a CPS case the better the outcome for you and your family. Your attorney will have more time to get ready for hearings and meetings with CPS if you choose to hire him as soon as you get the impression that a CPS removal may be upcoming. Usually, CPS will not blindside you with removing your child. Rather, they will let you know that their investigation is beginning to look like a removal may be necessary. They will ask for names and addresses of family members with whom your child could reside during the case. 

How does CPS focus on family unity during a CPS case?

Before removing your child, Child Protective Services (CPS) must make substantial efforts to prevent this. The actions CPS will undertake largely depend on local support services and your existing support network. Consulting an attorney can help you access these services, improving your chances of keeping your child at home.

At the start of their representation, your attorney may ask various questions. For instance, CPS should collaborate with you to develop a safety plan early in their investigation. This plan should outline necessary steps to prevent your child’s removal, such as attending therapy. If a safety plan has not been initiated, your attorney can contact CPS to address this delay.

Your commitment to treating marijuana addiction is crucial in your CPS case. Refusing to recognize your marijuana use as a problem or avoiding therapy could jeopardize your case. Community-based rehabilitation services will also be evaluated. A seasoned CPS defense attorney will be aware of local resources that can bolster your case now and in the future.

Substance abuse varies greatly, and what might not seem like addiction to you could be viewed differently by a court. If you regularly use marijuana, you need legal representation to navigate the complexities of a CPS case and safeguard your custodial rights. Exploring legal representation early in your case is essential.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

Other Related Articles:

  1. Child Protective Services in Texas: Safeguarding Childhood and Shaping the Future
  2. Child Protective Services (CPS) in Texas and Marijuana Use: What Parents Need to Know
  3. Child Protective Services (CPS) and Marijuana: A Comprehensive Guide to Texas Law
  4. Understanding CPS Authority: Can Child Protective Services Require Drug Testing in Texas?
  5. Confidentiality in your Texas Child Protective Services case
  6. Drug Offenses and Child Protective Services (CPS)
  7. CPS Navigator Your Guide to Conquering Child Protective Services with Confidence!
  8. Here is what you should do when Child Protective Services knocks at your door
  9. Refusing Entry to Child Protective Services 
  10. Child Protective Services Investigations in Texas

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