As national and state laws change regarding the use of marijuana, you must remain aware of how these changes can impact your child. If you, your spouse, or your co-parent are marijuana users then you need to be able to understand how this situation can change the relationship that you have with your child. Whether you or your loved one uses marijuana for medical or recreational purposes this blog post from the Law Office of Bryan Fagan is designed to help you navigate these ever-changing waters.
What are the types of CPS cases which involve drug use?
You as a parent can use a controlled substance in a way that results in injury to your child, whether that injury is emotional, mental, or physical. This is a textbook definition of abuse in a Texas Child Protective Services (CPS) case. On the other hand, if you are not meeting the physical, emotional, or medical needs of your child then that would be defined in a CPS case as neglect of your child. There is no explicit use or reference to drug use in the definition of neglect but it is not difficult to see how can occur if you are not paying close attention to your child while using marijuana or any other substance.
One of your primary responsibilities as a parent is to oversee the behavior of your child and to ensure that he or she is safe. When your use of marijuana, for whatever purpose you are partaking in the drug, overcomes that responsibility and you put your child in a dangerous situation you may be neglecting your child. Physical abuse almost certainly would be the finding by CPS if your child is physically injured due to you being intoxicated on marijuana. It is even the case that a newborn baby who shows signs of birth defects can find you as a mother in hot waters if you use marijuana while pregnant.
There are non-physical injuries that can also result in a child being exposed to you or a co-parent using marijuana. These would be mental or emotional injuries that may impact the child’s ability to problem solve, attend school, care for their daily needs or have a proper level of self-esteem or self-worth. Simply seeing you or your co-parent consistently abuse marijuana can be detrimental to your child’s emotional or mental development. Imagine a situation where your child is failing school and you are using marijuana to excess. It is going to be difficult for you to make an argument that your marijuana use has not negatively impacted your child academically.
When it comes to neglect of your child, supervision is usually the culprit. Even if an injury does not occur, a report made to CPS that your child was put in harm’s way can be the result of marijuana use. Consider what can happen if you decide to use marijuana during the day when your children are home from school for a holiday. Given that we are nearing the Christmas holiday break from school, your children may be home from school currently. Your decision to use marijuana can lead to bad outcomes if you doze off, take a nap and your little one wanders outside or into the street.
We mentioned earlier how if your child were to test positive for marijuana at the time of their birth that could result in a finding of child abuse made by CPS. However, even if your child does not test positive for marijuana you can still be found to have neglected your newborn through your use of marijuana while the child was in utero. A doctor, nurse, or other medical professional has a legal obligation to notify CPS if they suspect abuse or neglect of a child has occurred. So, if your blood tests come back positive for marijuana then you may be in troubled waters with CPS.
One of the reasons why CPS could find that you have neglected your child is due to the perceived ability of you to provide your child with a safe living environment. An assessment of your home could be necessary to overcome this belief by CPS if a report is made questioning the safety of your home and your viability as a caretaker.
What about exposing your child to substance abuse before they’re born?
If you use drugs or alcohol while pregnant with your child a report can be made to CPS about your behavior. It does not matter if the substance is illegal or legal. Substance abuse has been shown to increase the likelihood of your child developing physical or mental impairments. CPS has a specific phrase used to describe one of the results of prenatal substance abuse: infant born addicted. An argument against this finding by CPS is that a baby can’t be born addicted to a substance. Secondly, an infant can be born, and test positive for a substance but not suffer any harm as a result of their positive test results. However, findings of abuse or neglect can result from a situation like this.
Removing your child from your home
Most parents in your position are concerned with the possibility of their children being removed from the home due to a CPS investigation. Compared to most states in the USA, Texas is known as a state that removes children at a rate below the national average for CPS. If you could look at one factor that greatly increases the likelihood that your child will be removed from your home as a result of a CPS investigation it would be substance abuse. Not surprisingly, marijuana tops the list of abused substances when it comes to child removal.
It is not child abuse that forms the basis for a majority of these removals due to substance abuse. Rather, neglectful supervision is the finding that you as a parent should be most mindful of in this situation. This reflects the reality that when taking substances it is easy to abuse the substance or otherwise focus on your intake of the substance. All the while you have children at home who are unable to fend for themselves. Everyday household items and features of your home can become dangerous to your child when left unsupervised.
Even if you are fortunate enough that your child does not suffer an injury as a result of negligence, that can still find you in hot water with CPS. Keep in mind that if you have younger children at home that may increase the likelihood that your child will be removed as a result of substance abuse. The reality is that your older children can occupy themselves for longer periods without direct supervision from you. Tablets, video games, television, etc. all can hold the attention of an older child. Younger children have shorter attention spans and a propensity to find more trouble in the home.
Finding treatment and keeping your family together
Once CPS begins to investigate your situation for substance abuse it most likely means that you will need to begin some sort of counseling or treatment for an addiction. Depending upon the circumstances, substance, and extent of the addiction you may need to undergo inpatient or intensive outpatient therapy. Another factor to consider is where you live in Texas. Those of us who live in the Houston or San Antonio areas have many options at our disposal for treatment like this. However, if you live in a small town then your options may be limited.
All of this will relate to whether you can work with CPS to have your children remain in the home during this time of rehabilitation. The bottom line is that when CPS determines that your child is at risk of physical harm the agency will immediately begin to determine what services are available to you as far as helping keep the kids safe. Going to therapy will not directly count as one of those avenues to keep the kids safe from harm. Rather, the service will need to immediately address a safety concern for the kids.
Substance abuse and other factors combined lead more often to removals
In the context of a CPS case, substance abuse alone will rarely lead to the removal of your child from the home. If your or your co-parent’s substance abuse sprang from job loss, physical abuse by a co-parent, or other issues then these additional factors increase the likelihood of your child being removed from your home. The reason for this is that the additional layer(s) of factors can be seen as contributing to the likelihood of harm to your child if they haven’t already caused him physical or mental harm to this point.
Family Based Social Services (FBSS) is seen as an alternative in many cases to having to remove your child from your home during the CPS case. Parents who are going through substance abuse counseling can and should be treated through FBSS while undergoing therapy, counseling, or rehabilitation. This is assuming that the treatment is outpatient and you can be at home for your child consistently. While you are undergoing therapy you should alert CPS to the kind of treatment you are receiving.
However, one of the ways that FBSS is not able to help your family is if you do not have a well-established support system. CPS will ask for names, addresses, and information for extended family in your area who can help care for your children during the CPS case if and when you are unavailable to do so. Removal of your children from your home is more likely if you lack family or a support system in the area that can step in for you when needed to care for your children.
To be clear, when CPS removes your child from your home it does so either after obtaining a court order permitting them to do so or after it finds an emergency exists sufficient to justify removal. Even after emergency removal, the agency must seek a court order that grants them temporary conservatorship rights. These temporary conservatorship rights provide CPS with the right to determine the primary residence of your child and make decisions about medical care for him as well as where he attends school. CPS, for better or worse, becomes the primary guardian of your child after 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?
CPS will need to make a concerted effort before the removal of your child from your home to try and prevent this from happening. When we talk about marijuana abuse cases, the reasonable efforts that CPS must undertake to keep your child in the home will depend in large part on the available services in your area for care as well as the type of support system you have around you. An attorney will be familiar with support services in your area and can help you sign up for them. If you can begin a CPS case with you already in outpatient therapy then this greatly increases the likelihood that you will be able to keep your child in the home.
Your attorney may ask you several questions at the beginning of their representation of you. For instance, CPS should work to develop a safety plan with you early in their investigation. This safety plan would likely include steps that you need to take to keep your child in the home rather than face removal. Those steps may involve you attending therapy, etc. If CPS has not started the safety plan process yet then your attorney can reach out to the investigator and/or supervisor to find out why this has not been completed.
Your willingness to enter treatment for marijuana addiction is a very important part of your case. If you either do not see an issue with your marijuana use or are otherwise unwilling to attend therapy then this is a major issue. On top of that the community-based rehabilitation services will be evaluated. An experienced CPS defense attorney will know of resources in your area that can help you achieve good results now and in the future. You may be unaware of those resources or cannot find out more about them without assistance from an attorney.
The key to this entire situation is that substance abuse comes in many different shapes and sizes. If you are a regular user of marijuana then you may not consider your partaking of the drug as an addiction but a court may. When it comes to substance abuse you need representation. A lot is happening at the same time in a CPS case and you risk losing custody of your child during the process. Finding out more about legal representation should be something that you look into early during your case.
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.
