Thursday, 1 Jun 2023

She Smoked Weed, Legally, Then Gave Birth. New York Took Her Baby.

For Chanetto Rivers, the birth of her third child went relatively smoothly. About an hour after she arrived at the hospital in the Bronx, she was holding her newborn son.

But while she was pushing, in a maternity room crowded with doctors and nurses, someone asked a question: Had she consumed drugs or alcohol?

Ms. Rivers answered that she had smoked marijuana at a family barbecue hours earlier. She thought nothing of it — it was August 2021; marijuana had been legal in New York for months.

Without Ms. Rivers’s consent, she said, she and her baby were tested for drugs. Both were positive for marijuana. The city’s child welfare agency, the Administration for Children’s Services, ordered the hospital not to release the baby to Ms. Rivers, her lawyers said.

New York’s legalization law bars removing a child for a parent’s marijuana use alone. A.C.S.’s policy states that marijuana in an infant’s system is not grounds for removal without a finding that the baby might be impaired.

A.C.S. never alleged that Ms. Rivers’s son was harmed by the marijuana exposure, nor did he receive treatment at the hospital related to it, Ms. Rivers’s lawyers said. The agency, and the hospital, said Ms. Rivers had smoked marijuana at the hospital, an accusation she denied.

Nevertheless, A.C.S. officials told Ms. Rivers they were opening a neglect case and moving to place her baby, identified in court records as T.W., in foster care.

It took nearly a week, multiple trips to court and a judge’s order before Ms. Rivers regained custody of her son.

But she was not yet free of A.C.S. For three more months, her lawyers said, the agency required her to attend classes in parenting and anger management and to take drug tests. Caseworkers came to her apartment unannounced at random hours, including in the middle of the night.

The case comes as marijuana’s legalization in New York has created uncertainty for authorities about how to treat its use. The state now bars employers from discriminating against workers who use marijuana legally; there are exceptions for employees who are impaired by marijuana while working, though there is no clearly drawn definition of impairment.

Ms. Rivers had a prior child welfare case; she lost custody of her two older children in 2016 for drug and alcohol use and for failing to obtain medical care for her older son. But her lawyers said the history was irrelevant. They said that A.C.S. had already cleared her to regain custody of her older children (though they had not yet moved back in with her at the time of T.W.’s birth because of court delays), and that both judges who presided over the T.W. case had said Ms. Rivers’s history did not create an imminent risk to the baby.

On Wednesday, Ms. Rivers’s lawyers, the Bronx Defenders, sued A.C.S. on her behalf in federal court in Manhattan. The suit says the agency went after Ms. Rivers so aggressively “not because A.C.S. was trying to protect T.W.” but “because Ms. Rivers is Black.”

The lawsuit argues that Ms. Rivers’s treatment fits a decades-long pattern of discrimination against Black families by A.C.S., some of it documented in a 2020 audit in which the agency’s own employees said that A.C.S. was racist. (Bronx Defenders filed a companion suit on Wednesday, charging that A.C.S. had illegally withheld documents connected to the audit.)

The lawsuit also noted that one of the main purposes of the Marijuana Regulation and Taxation Act of 2021 was to undo generations of harm caused by drug laws that were disproportionately wielded against Black and Hispanic people.

Ms. Rivers’s lead lawyer, Niji Jain, said the agency’s removal of T.W. “was the wrong decision on the law, it was the wrong decision on the facts, and then there’s the historical context.” She was referring, in part, to the largely discredited “crack baby” hysteria of the 1980s and ’90s, in which researchers and media reports falsely described a vast epidemic of children damaged by their mothers’ cocaine use.

The suit, filed with the firm Arnold & Porter, also charges A.C.S. with violating Ms. Rivers’s constitutional right to due process.

A.C.S. said it was barred from commenting on individual cases by state confidentiality laws but stated that it does not remove children based solely on a parent’s use of marijuana.

“When A.C.S. investigates a case involving an allegation of parental drug/alcohol misuse (regardless of what the substance is), A.C.S.’s policy and practice mandated under law is to assess the impact any misuse has or may imminently have on child safety,” an agency spokeswoman, Stephanie Gendell, said in a statement.

While there have been other instances since legalization where A.C.S. cited a parent’s marijuana use as a reason to remove a child, Bronx Defenders said Ms. Rivers’s case was the first they knew of where marijuana was the only reason.

Research has shown that Black expectant mothers are tested disproportionately for drugs. A study published last month in the journal JAMA Health Forum of nearly 40,000 births in Pennsylvania hospitals from 2018 to 2021 found that Black mothers were more likely to be drug-tested than white mothers, even though white mothers were more likely to test positive. Ms. Rivers’s hospital, BronxCare Health System, did not immediately respond to questions on Wednesday about whether it had tested Ms. Rivers and her son without her consent.

Research also suggests that the first days of a baby’s life are a critical bonding time. While T.W. was in the hospital, Ms. Rivers, 34, was allowed to visit him every day, but only briefly, she said.

When T.W. was brought to her, “it was like I was being watched and calculated and observed,” she said.

“Every time I went there, I would try to feed him and they’d be like, ‘Oh, we already fed him,’ or ‘we already changed his Pamper’ — they did everything that nurtured my own baby,” she said.

Dr. Mishka Terplan, an author of the Pennsylvania study, said in an email that measurable effects of prenatal cannabis use on child development “are rare, subtle, and of uncertain clinical significance.”

Dr. Terplan added that in cases like Ms. Rivers’s, “separation of a child from its care giver is likely significantly worse for its development than the cannabis exposure.”

Ms. Rivers’s case came before two family court judges. The first said he found it “troubling that A.C.S. runs to court” to seek removal based purely on marijuana use, the suit states.

The second ordered A.C.S. to return Ms. Rivers’s baby, over the agency’s objections. The judge noted that while she believed testimony that Ms. Rivers had smoked marijuana in the hospital, “that still does not rise to the level of imminent risk,” according to the suit.

The T.W. case ended up further delaying Ms. Rivers’s efforts to regain custody of her older children, the suit states. She won custody of them only after A.C.S. dropped the T.W. case, 107 days after he was born.

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