The most common situation in which Child Protective Services (CPS) resorts to family separation is when a newborn child tests positive for illicit drugs due to prenatal substance exposure. Typically, when a hospital runs this test on a newborn and it comes back positive, they will immediately report it to CPS and the removal will be performed at the hospital. CPS tends to take a remove first and ask questions later approach in these types of cases. Occasionally, the removal is performed after the mother and the baby are discharged, but it is usually easier for CPS to do so in the hospital, where the hospital staff are more likely to cooperate with them, there are security staff on site and the mother is recovering from childbirth.
Because the evidence is already there in the form of the test result and medical professionals, as mandated reporters, are allowed to share the results with CPS due to mandatory reporting laws superseding HIPAA , these removals happen very quickly and are extremely difficult to fight. In addition, licensed medical professionals (physicians, physician’s assistants, nurse practitioners, nurses, phlebotomists, etc.) are also considered credible by CPS, making their assertions especially difficult to fight by nature of their credentials alone. Reunification in these cases can take anywhere from months to years- if ever. If there are other issues discovered in the home during the course of an attempt at reunification, that alone can be enough to push the timeline beyond the deadline posed by the Adoption and Safe Families Act (ASFA) for CPS to pursue termination of parental rights (15 of the last 22 months in foster care/kinship care/institutionalization, but states may elect to use an even lower threshold).
First, let’s discuss how a newborn child could test positive for illicit substances at all. More often than not, it’s because the mother ingested illicit substances while pregnant and it passed through the placenta to the fetus. Please note that illicit substances are not just substances like cocaine or heroine. For these purposes, they also include alcohol, marijuana, tobacco and more. CPS does not have jurisdiction until a child is born, so there’s nothing they can do while you’re still pregnant. However, they gain jurisdiction and can act as soon as a child is born. It is common practice to drug test newborns- often referred to as newborn toxicology screens (or tox screens for short). Hospitals are inconsistent in the threshold for a positive newborn tox screen and eating an everything bagel may be enough to trigger a positive test at some hospitals. In rare cases, there is a false positive newborn drug test. However, CPS tends to act quickly and the hospital may not run the test a second time or perform further investigation to determine whether or not this is the case.
It’s not always the mother ingesting an illicit substance while pregnant, though. Sometimes, a mother may take an over-the-counter medication while pregnant that crosses the placenta and may result in a false positive drug test. While rare, samples may become contaminated or result in a genuinely false positive for another medical reason. When a positive drug test comes up on a newborn, this is typically considered an automatic removal. Parents are blindsided at their most vulnerable- physically, psychologically and socially- and there’s not usually a quick remedy. The remedial courts typically move slowly, resulting in parents who end up in this situation missing out on crucial months or years of bonding and milestones in their baby’s life.
At CPSprotect Consulting Services, we recommend following a few rules to reduce the chances this happens to you:
- Do not use any recreational drugs or alcohol of any kind for the duration of your pregnancy (this includes tobacco, alcohol, marijuana and any other illicit drug.
- Speak with your doctor about any medications you are prescribed that may be able to cross the placenta and if possible, switch to an alternative medication safe for your baby for the duration of the pregnancy.
- Speak with your doctor about any over the counter medications to avoid while pregnant.
- Keep an up-to-date letter signed by your doctor on his or her professional letterhead of all the medications you are prescribed, including dose, frequency and reason on your person at all times.
- Speak with your doctor about foods that may increase the likelihood of a false positive drug screen in order to avoid them and reduce risk.
- If possible, give birth at a private hospital or if it can be done safely, give birth at home. Public hospitals are the most likely to test newborns for drugs as routine- rather than with reasonable suspicion.
- Never volunteer yourself or your newborn baby for a drug test.
While newborn drug screens are common practice, they are most likely to be performed at public hospitals. These are hospitals that are owned by the state or local government (this also includes hospitals federally owned by the military). Private hospitals, such as university-affiliated medical centers and other privately-owned hospitals, do perform newborn drug tests, but less consistently. Newborn drug tests are not conducted for home births, as there is no one there to do the test and it cannot be mandated in your home without a court order. While it may be easier not to think about CPS involvement once your baby is born, the potential consequences are so swift and severe it’s worth doing the work now to avoid the grief and anguish later. If CPS is already involved, act quickly to get help from a community-based organization through your health insurance or a private non-profit organization, rather than prevention services– and make sure it’s approved by the court. The more you know, the better prepared you’ll be and the easier a time you’ll have.