NYC child welfare agency still citing marijuana in family separations despite legalization, state policy change

Jaquanna Brooks said she always wanted to be a mother.

She was homeless in 2011 when she had a daughter, the second of her five children, and tested positive for marijuana after giving birth in Brooklyn, though she said her newborn tested negative. Hospitals are not required to test pregnant women for drugs but they are required to report positive results.

New York City’s Administration for Children’s Services took her daughter and older son away months after filing a petition to demonstrate that she neglected both children — predicated on her testing positive for marijuana, according to Brooks and documents reviewed by Gothamist.

Gothamist reviewed Brooks’ cases for each of her children, all of whom are now in foster care. Marijuana is the basis of the first case, according to the records. It cites her positive test and allegations that she is an addict — which she vehemently denies. She says the city has used the first removal of her children after her positive test in 2011 —  along with a previous test in 2008 after the birth of her first child —  to bolster claims of parental neglect involving her other children.

Records show that every subsequent petition against her —  for each of her five children over the last decade — cites the first case as a basis to deem her neglectful in the others. Just days before recreational marijuana was legalized last year, Brooks lost parental rights for four of her children.

“If there’s no abuse on record, why am I going through this? … Is it because I’m a Black woman? Is it because I’m a single Black woman?” she said in a recent interview. “I feel like ACS is systemic racism at its best. It’s a way to pull apart Black families.”

Marijuana was legalized statewide in March 2021. Many Democrats rallied around the racial equity that legalization was supposed to bring. The law enshrined what was already supposed to have been ACS policy for years: No parent shall be found neglectful only because they use marijuana, without proving harm or its potential to the child.

But court records and interviews with people directly involved in ACS proceedings suggest New York City’s child welfare system has been slow to change since changing its policy and since legalization, with marijuana continuing to be used as a cudgel against families, attorneys leaning on old taboos, and family court judges allowing outmoded ideas about marijuana to persist.

Gothamist spoke to a dozen parents, attorneys, advocates, and experts who said they’ve seen or experienced this firsthand. Half of those interviewed at length were parents who said it has felt impossible to extricate themselves from deeply rooted biases in the child welfare system surrounding marijuana use, specifically toward people of color. Those interviews, along with records from family court cases, suggest marijuana continues to be used both to help separate children from their parents and keep families apart in long-running family court cases.

Though not all parents had marijuana used as the sole claim against them, their use of the drug has been cited to separate parents from children in a litany of ways since legalization — from being a means to justify the initial act of separation or to prolong time apart from their children through tests, substance abuse programs, and other goalposts that critics deem arbitrary and unattainable. All of the parents interviewed are Black. Some were in the shelter system when ACS first took their children away. Most were women; one was a man.

All of the parents said marijuana was leveled unfairly against them because of their race. They describe an era after cannabis legalization in which parents are still subjected to drug tests, outpatient programs and separations. One parent said they were reunited with their child during a trial-based reunification only to have the child removed after testing positive for marijuana.

ACS denies that marijuana is ever used as a sole means of separating children from their parents. But since family court cases have more layers of privacy than others, the claim is difficult to verify. ACS cited procedural restrictions in providing even anonymous or disaggregated data to Gothamist. The agency says drug and alcohol claims are lumped together in a single category, leaving no room to answer questions specifically on marijuana.

“They might be savvy enough not to put it directly in the petition as a charge of neglect. It is absolutely still used to keep parents from their children and to sort of slow down the process of reunification,” said Emma Ketteringham, managing director of the family defense practice at the Bronx Defenders, a public defender nonprofit.

Policy versus practice

A spokesperson for ACS said the agency’s official policy is not to remove children based solely on a parent or caregiver’s use of marijuana.

“When ACS investigates a case involving an allegation of parental drug/alcohol misuse (regardless of what the substance is), ACS’s policy and practice is to assess the impact any misuse has on child safety,” said Marisa Kaufman, the agency spokesperson. “In addition, the decision to remove a child from their home is always reviewed by a family judge and no child is in foster care without court approval.”

The agency has been using a similar message to explain its treatment of parental marijuana use for more than a decade. But in the years leading up to marijuana being legalized in the state, families and attorneys argued that the agency did not follow that policy in practice, with parents pointing to petitions in which the only evidence for neglect offered is a parent’s alleged use of the drug.

Now, after legalization, they said the same stigma persists, both against people who use marijuana recreationally, and — according to some lawyers and advocates — against parents with prescriptions for medical marijuana. Medical marijuana use was legalized in New York in 2014.

“We have seen ACS interrogate the validity of the prescription both by wanting to speak directly with a doctor, or questioning the veracity or authenticity of the prescription — and then taking it a step further by even questioning the medical decision to prescribe the marijuana,” said Nila Natarajan, supervising attorney and policy counsel of Brooklyn Defender Services’ Family Defense Practice.

When asked about the claim, ACS repeated its assertion that it looks at all cases in the context of child safety.

But Natarajan and others argue that the agency portrays these parents as using marijuana to self-medicate and as therefore showing signs of mental instability.

"Let's say that parent also sees a mental health professional,” Natarajan said. “We have seen ACS go to the mental health professional and say, 'Oh, do you know this person is prescribed marijuana? What's your assessment of their marijuana use? Is it really OK for them to be using marijuana?'"

The cannabis bill signed into state law in 2021 notes that “the sole fact that an individual consumes cannabis, without a separate finding that the child's physical mental or emotional condition was impaired or is in imminent danger of becoming impaired … shall not be sufficient” for proving neglect.

But critics say ACS continues to flout the new measures.

“It's actually incomprehensible as to why an agency would continue to pursue these types of cases, when quite clearly the law has foreclosed against them being able to do that when there's no harm to a child,” said Melissa Moore, director of civil systems reform at the Drug Policy Alliance, a national organization that has long opposed the “war on drugs.”

Some family defense attorneys say it’s an attempt to frame certain people as unfit to parent.

One of the petitions filed by ACS against Brooks in 2018 cites untreated bipolar disorder — a diagnosis she strongly refutes as something that has never come up with her own doctor — as grounds for neglect. She admits to having been depressed, but said it was because her children had been taken from her. Brooks likewise disputes any notion that she is addicted to marijuana, which she freely admits to having used in the past. She cites her mother’s own struggle with addiction, saying it ultimately killed her.

Brooks, who herself grew up in the foster care system due to her mother’s hard drug use, said testing positive for marijuana has been treated as a stain on her record as a parent.

A judge terminated Brooks’ parental rights for four of her children in 2021, a few days before cannabis legalization, and ACS is seeking to get them adopted. All five of her children, including her youngest son, live in different foster homes. The only claim spelled out against her beyond marijuana use is a verbal altercation she got in with staff at a homeless shelter intake center in 2020, which was cited in a petition filed the next day that claimed she neglected her youngest child, according to records. Brooks said she’s completed two outpatient programs for marijuana and no longer uses it, nor does she drink or do other drugs. She provided documentation to Gothamist certifying she had completed her most recent program in 2018, as well as a letter sent to a judge this year saying she hadn’t used marijuana in three years.

“I’m not a woman who had kids just to have them. I literally prayed for each one of my children. At one point in time, I could not have kids. So to pop out five? That is a blessing,” she said.

“And to have that blessing interrupted — and to have my kids snatched from me for no reason?” she said. “I can’t even describe it.”

In response to Brooks’ allegation, the agency said it could not directly comment on parents who may or may not be involved with the system. But records show her marijuana use is the only clear allegation against her. It’s mentioned in hundreds of pages of court documents in a more than decade-long court battle for her children, most of whom she has already lost.

“God blessed me with my children. He knew, ‘She's gonna take care of them. They’re going to be alright.’ But here are these outside entities who’s telling me: ‘You’re a bad mom, because of family history. And because you smoke weed. And because you're in the shelter system. Because you're getting Medicaid, you're a bad mom,’” Brooks said. “And that’s wrong on many f—ing levels.”

A push for transparency

Black children are vastly overrepresented in the New York City foster care system, magnifying a disparity seen around the country. Though the number of kids entering and already in the city system has been on a steady decline in recent years, Black children represented 47% of new foster care entrants in 2021, according to a report from the state’s Office of Children and Family Services.

White children, by contrast, represented just over 4% of new admissions in New York City. The report shows a similar racial gap for the number of children already in the system.

It is difficult to track the demographics of parents facing marijuana claims in family court. State and city governments don’t publicly release data on factors like race and how it relates to certain types of drug claims. Gothamist requested disaggregated, anonymous data on marijuana from ACS but was told it ran contrary to how the agency collects and stores information — though advocates have challenged the agency’s explanation and its refusal to provide measurable data.

Marijuana is not listed as an official type of allegation under the state’s record-keeping system, which ACS is required to use. Claims of marijuana use are categorized under “parent’s drug/alcohol misuse."

Critics have pressed for more transparency, with little success to date.

A 2019 bill in the City Council sought to force ACS to provide an annual report on investigations that were initiated based on positive drug tests reported by workers in the city’s public hospital system, Health + Hospitals. The proposed legislation came amid a years-long push by attorneys for data to explain what they saw as a racial divide among their clients in how the agency was using marijuana against families.

The bill would have required the agency to provide annual disclosures to the mayor and Council on the type of drug a parent tested positive for, and whether they consented to testing, among a slate of other metrics that could have been used to assess impacts on families of color.

The legislation stalled and was never reintroduced. But to families within the child welfare system, the disproportionate burden on Black people is clear.

A 2020 report from Movement for Family Power published with the NYU Family Defense Clinic and Drug Policy Alliance notes that one in three Black or Latino children in New York City have come into contact with ACS, “either through an investigation, service provision or foster care.”

“Far too many parents are forcibly separated from their children on flimsy legal grounds,” the report reads.

The scope of the report covers all types of drug and alcohol allegations against parents nationwide, including marijuana use, and highlights findings from parents in the Bronx under investigation by ACS.

“There is zero tolerance of all drug use, and sobriety is required of parents regardless of whether they use drugs in a manner that is safe to themselves and their families,” reads the Bronx section of the report, covering several years between 2011 and 2017. “In fact, there is rarely any inquiry into how a parent uses drugs to determine whether drugs are used safely — just whether they are used at all.”

A bill seeking to end the practice of non-consensual drug testing on pregnant people, those who have just given birth, and their newborns also stalled in Albany this year.

Public hospitals in New York City have been required to obtain a pregnant person’s written consent to be tested for drugs, including marijuana, since November 2020. Just before news of the policy change broke, the city’s Commission on Human Rights announced an investigation into three private hospital systems’ testing of pregnant people and newborns for drugs, “to assess whether those policies and practices demonstrate discriminatory racial bias against Black and Latinx families.”

Though alcohol and marijuana use are now on a level playing field under the letter of the law, attorneys say they frequently diverge in its execution.

Families and those who support them say the promise of equity for Black and Latino people that came with cannabis legalization has been elusive.

“Slavery has been replaced with what we call today ‘systems,’” said Joyce McMillan, a fierce critic of ACS and founder and executive director of JMacForFamilies, which advocates for parents in the child welfare system. “If you look at who’s disproportionately impacted by systems, it’s Black, brown, and poor people.”

Marijuana’s legacy

The Marijuana Regulation and Taxation Act was signed into law by former Gov. Andrew Cuomo last year, making it legal to use marijuana recreationally and opening the doors to a regulated local industry. The bill had languished in Albany for years before finally delivering a decisive victory for criminal justice advocates in particular, who viewed it as an equity issue.

But marijuana use continued to be used in family court as a reason for separating children from their parents, as is evident in petitions and court reports and remarks made in court by ACS attorneys.

One court document cited a pregnant woman’s use of marijuana, for which she last tested positive in April of this year, as an “ongoing concern.” It cited two other positive tests from January and December that same year.

Lawyers and advocates said families being investigated by ACS continue to be tested for marijuana, either by court order or voluntarily, in cases where parents may not be aware of the consequences, and that ACS lawyers arguing for a child’s removal still cite claims of parents using the substance in court. Attorneys told Gothamist that some judges have even raised a parent’s marijuana use on their own in explaining their reasons to slow down the reunification of parent and child.

Before legalization, the New York City Council passed a series of resolutions in 2019 — in lockstep with the unsuccessful bill for data transparency — hoping to end ACS’ practice of using marijuana as a sole claim against parents in removal proceedings, and establish state-level guidelines on when hospitals can test pregnant people. ACS released a bulletin to its staff that same year, underscoring a policy that attorneys and advocates say was often ignored in practice: Marijuana use alone does not constitute parental neglect under state law.

Language in New York state’s marijuana legislation reiterates this, stating that cannabis consumption, “without a separate finding that the child's physical mental or emotional condition was impaired or is in imminent danger of becoming impaired … shall not be sufficient to establish prima facie evidence of neglect.”

The state Office of Children and Family Services doubled down a year later. A letter obtained by Gothamist addressed to commissioners of local social service agencies across the state shows the state directing them to comply with the legislative language.

“The SCR will not register a report of suspected child abuse or maltreatment when the only reported concern is that a birthing parent and/or an infant tested positive for the presence of cannabis,” the letter dated Apr. 7, 2022 reads, although it also makes an exception in cases where an investigator has “reasonable cause to suspect that a child's physical, mental, or emotional condition has been harmed or is at risk of being harmed.”

‘I’m just ready to die’

Another mother, Essence, asked Gothamist to withhold her last name over fear of retaliation during her ongoing family court case. Her child was also removed from her when she was homeless in 2019, she said, initially on allegations of medical neglect after refusing a blood transfusion for her son.

She said those claims were later abandoned. But attorneys continued to pursue neglect claims against her, and sought to have her undergo a drug treatment program for marijuana in April 2021, shortly after legalization, she said.

“The case has never been about being around my son high. My case has nothing to do with that," Essence said. “I’m a young Black mother, I’m 24 years old and I’m just like, it’s sad. You know?”

She said the judge “just doesn’t care” that she’s been marijuana-free for months. She has another hearing scheduled for September to assess where and with whom her child should live.

The day a judge ruled her son would be taken away from her, she said she raced back from family court in one of the outer boroughs to the hospital he was in. A pediatric nurse who had been instructed to turn her away instead quietly let her into the room and let her say her goodbyes, she said.

“The only thing I just kept thinking was: ‘I’m just ready to die,’” Essence said.

Her child remains in foster care. She has an apartment that she has been readying for the return of her son. She bought him a pet fish to take back to his temporary home, a gift his foster parent refused.

She said her drug program for marijuana, expected to conclude in May, has been extended, after she missed too many classes.

“I buy all of his clothes since he's been in care. I buy all of his shoes, I buy all of his toys, you know? I still provide for him and it’s just — I'm just here and I'm just waiting. Got his room set up,” she said. "But my son can’t even come home.”