Any Drug-exposed Newborn Would be Seized Under Proposed D.C. Legislation
Faced with chronic crisis in the city's child protection system and blistered by a series of Washington Post articles detailing the deaths of 40 children under the system's care since 1993, the Washington, DC, City Council has responded by drawing a bead on pregnant women who use drugs. A bill introduced by Councilmember Sandy Allen (D-Ward 8), the Infant Protection Act of 2001 (http://dccouncil.dc.gov) would allow the DC Child and Family Services Agency to take custody of any newborn infant who tests positive for any non-prescribed controlled substance at birth, is deemed by a physician to be suffering an illness related to prenatal drug use or to have fetal alcohol syndrome, or whose mother tests positive for any controlled substance at childbirth.
Under the bill, children born exposed to drugs or whose mothers had drugs in their system are "presumed" to be abused or neglected. DC Child and Family Services would be required to "begin immediate proceedings to remove the child from the home of the mother" and its social workers would then begin abuse and neglect investigations.
Currently, DC has no mandatory reporting requirement, let alone automatic removal of children. Eighteen states mandate some sort of drug-exposed newborn reporting, but the Allen bill would make the District's law among the nation's toughest.
"This is a nightmare," said Lynn Paltrow of National Advocates for Pregnant Women (www.advocatesforpregnantwomen.org),a nonprofit group that works to protect the rights of pregnant and parenting women and which opposes the bill. "If your real goal is to protect children," she told DRCNet, "we could suggest 20 or 30 things for DC child welfare, but automatically removing a child based on nothing more than an unconfirmed positive drug test is not among them."
But Councilmember Allen, who represents the largely poor and black Southeast and Anacostia neighborhoods, said she was "outraged" by the city's woeful child welfare apparatus and pointed to the Post's exposé as "one of the reasons we're moving in this direction. My concern is this," she told the Council, "without this legislation what will the District of Columbia do?"
There is reason for concern. The District's Child and Family Services Department has just emerged from six years of oversight by a federal judge, and, as the Post reported, 40 children died in seven years after it failed to take preventative action. Eleven of those cases involved drug-exposed infants who were sent home although hospital or social workers knew of parental drug use.
"The District's child welfare system is fundamentally flawed and dysfunctional at every level," responded Paltrow. "What sort of response is it to inevitably and pointlessly put hundreds more children into that system? The system is out of control;the system of supervising care is out of control. This sort of response is superficial and unhelpful," she said. "It is politically expedient, yet fails to address the underlying failures."
Washington suffers from a current shortage of foster care for children taken from their parents, and some city workers wonder where all those drug-exposed babies would go. "It's very complex," one social worker demanding anonymity told the Post. "People should think long and hard about finding more foster homes where we can raise these babies. Right now, we don't have any places to put them."
Allen also ran into opposition from the mayor's office. Deputy Mayor Carolyn Graham told the Council that rather than remove infants from their mothers, the city should try to provide mothers with access to drug treatment and monitor the case for the child's well-being. Graham estimated the number of drug-exposed babies born in the District each year at 1,500, about 20 percent of all births in the city.
Even the city's Child Fatality Review Committee, which monitors all deaths of children in the city and has called 47 times for improvements in the city's handling of child protection, has deep reservation's about Allen's measure. "It goes too far," committee member Elizabeth Siegel told the Council.
National Advocates for Pregnant Women's Wyndi Anderson also testified before the council, telling the members, "I cannot, in good faith, stand by and not speak out when policies will serve only to target and punish the poor addict and the addict of color, offering no real solutions."
"Who gets tested for drugs at childbirth?" asked Paltrow. "Eighteen states now mandate some reporting of positive drug tests for newborns or mothers, but not one mandates testing of every pregnant woman or father. Who gets tested is at the discretion of the hospital where the woman goes for prenatal care and services, but the studies have shown that African-American and poor patients are ten times as likely to be tested and reported than their white counterparts," she said. "Women who can afford to go to suburban middle class hospitals are not tested at all."
It will be a tough fight to defeat the bill, said Paltrow, but "perhaps unlike some locales, there are people here watching closely. People in DC understand that their child welfare system is in such disarray that it couldn't handle the influx of children that would result."
Allen remains unswayed and in fact appears to be hardening her position. Last month, she introduced a similar bill, the "Improved Child Abuse Investigations Amendment Act of 2001," but that bill required only that the city initiate an investigation into whether child abuse or neglect had occurred when an infant was born drug-exposed, not the "presumption" that this is the case that appears in her later bill.
There is a better way, according to Paltrow. In a letter to the City Council, she wrote, "Rather than implement either of the proposed bills, the Council should instead adopt measures that will increase access to appropriate, confidential drug treatment and other health services for pregnant and parenting women. The Council should improve the ability of child welfare workers and mandated reporters to identify and respond to real evidence of abuse or neglect rather than to use any single marker as a substitute for such an evaluation."
Paltrow also provided alternatives to a measure aimed more at punishing drug-using mothers than protecting children. The Council would be better served to:
-Ensure that drug treatment, prenatal care, and other reproductive and mental health services are widely available and fully accessible to pregnant and parenting women.
-Create and fund treatment programs that follow the recommendations of experts on women's treatment.
-Provide meaningful training to child welfare workers on issues of drug and alcohol use and treatment for drug addiction as well as issues of post traumatic stress disorder that are highly associated with drug and alcohol problems.
-Sponsor research to determine the efficacy of similar statutes in other states. Significantly, it appears that no state that has defined drug use during pregnancy as civil child neglect has engaged in any systematic study to determine the cost, effects or results of the laws. South Carolina's dramatic increase in infant mortality rates since implementation of such laws is one strong indication of the need for such investigation.
-Enforce anti-discrimination laws against existing programs that deny access to pregnant women.
-Increase training for child welfare workers and reduce their caseloads so that they can identify and respond appropriately to all cases where a parent's behavior in fact indicates an inability to parent.
Philip Smith edits DRCNet's Week Online.