Western States Wrestle With a Child Welfare Response to Addictive Drugs

By Jeremy Loudenback
The Imprint, CalMatters Network

Should kids be removed from home more quickly when their parents are using fentanyl — a drug that the nation’s Drug Enforcement Administrator has called “the single deadliest drug threat our nation has ever encountered?” Or is the country returning to a decades-old playbook from the misguided “war against crack mothers?” 

Washington state Sen. Claire Wilson’s bill would step up child welfare enforcement when drugs like fentanyl are present in a home with kids.

Recent developments in two western states — a region where children have died from the accidental ingestion of synthetic opioids — reveal opposite approaches.

The California Supreme Court ruled unanimously late last year to strike down the state’s “Tender Years Doctrine,” a legal standard that has long permitted courts to more easily remove children under 6 from home due to parental substance use. The doctrine relies on an assumption that the drug use will necessarily lead to child maltreatment for these youngest children. Now — as with cases involving older kids — child welfare agencies must prove in court that a parent’s drug use presents a safety risk to the child.

Meanwhile, lawmakers in Washington state are considering a bill that would grant sweeping new powers to doctors and police officers when “high-potency synthetic opioids” are found in a child’s home, regardless of age. In such cases, the authorities would have the right to remove children from their parents without a court order, if government custody is deemed “necessary to prevent imminent physical harm.”

At a Thursday hearing for Senate Bill 6109, state Sen. Claire Wilson made the case for stepped-up enforcement. Her legislation would instruct courts during a foster care removal hearing to “give great weight” to the presence of drugs like fentanyl in a home. It would also create new guidance and a risk assessment tool for child welfare workers weighing child safety in such cases.

Wilson cited a rising number of poisonings and deaths of toddlers who have accidentally ingested fentanyl as “a unique threat that we’ve never experienced before.” 

“We are overwhelmed right now by the magnitude of the opioid crisis,” the Democratic legislator told the Senate Human Services Committee.

Her bill proposes more than just a punitive response for fentanyl use, she said. Some parents and pregnant women with a history of substance use would have access to home-visiting programs and community-based prevention services. And children would not be removed from home “without asking questions or having the evidence that we need to make sure that they are in fact in danger,” Wilson said.

But opponents of the legislation — including a former top federal child welfare official — pushed back at Thursday’s hearing. They say policies making it easier for courts to place children in foster care have been tried before, and have resulted in devastating effects on communities of color.

“Throughout our history of child welfare, we have seen these kinds of panic removals occur over and over and over again, specifically in the ’90s with the crack cocaine epidemic,” said Jerry Milner, a former associate commissioner of the U.S. Children’s Bureau.

Milner — who testified remotely — told Washington lawmakers that he had “very, very serious concerns” about SB 6109.

Parents, attorneys and public health advocates expressed similar alarm, cautioning that the proposed legislation could lead to a spike in the number of foster children and threaten a statewide effort to prevent family separation.

“If this bill were to pass, children could be ordered removed from the custody of their parents without specific robust evidence of risk of harm in their situation,” said Melissa Moore, director of civil systems reform at the Drug Policy Alliance. Her New York-based nonprofit advocacy group seeks to end punitive and discriminatory drug policies. 

Alcohol or drug abuse played a role in almost 40% of child welfare cases nationwide, federal data show. And CPS involvement can start before birth. A 2020 report by the activist group Movement for Family Power found that 19 states and the District of Columbia define prenatal exposure to drugs “as sufficient to make a child maltreatment finding.”

Use of synthetic opioids such as fentanyl remains a top concern among child welfare agencies, amid an increase in overdose deaths nationwide over the past dozen years and the drugs’ power to debilitate users. The U.S. Drug Enforcement Agency describes fentanyl as up to 50 times stronger than heroin and 100 times more powerful than morphine. Doses as small as two milligrams can be lethal.

Fentanyl overdose deaths have increased every year since 2012, peaking in 2022 with more than 73,000 fatalities, according to federal data. State legislatures across the country responded last year by passing more than 100 related laws. The new legislation covered a range of approaches — from imposing tough new sanctions on dealers, to creating prevention campaigns and assisting addicted youth.

Child welfare agencies are also reeling from the drug’s impact, facing heightened scrutiny. In the past year, infants and toddlers known to the system have ingested fentanyl and died in cases across the country, including San Jose, California; Snohomish County, Washington and Baton Rouge, Louisiana — prompting anger and recriminations against public officials tasked with child safety.

In Washington, Wilson and other state officials have zeroed in on the particular risks for young children. Last year, there were 33 fentanyl-related “critical incidents” involving kids under Department of Children, Youth and Families supervision who died or nearly died. Twenty-nine were age 2 or younger.

While not downplaying such tragedies, youth advocates interviewed by The Imprint said in such a climate, officials could go too far in the wrong direction. Too many dependency and family courts rely on outdated science, they say, allowing the removal of children simply because parents are found to be using drugs — rather than finding that they harmed their children. 

The recent California Supreme Court ruling in the case of a Los Angeles County child identified as “N.R.” supported a change in that practice.

“It is inappropriate to regard a parent’s or guardian’s excessive use of alcohol or an addictive drug as always being sufficient, by itself, to show that the parent or guardian is unable to provide regular care for a young child and that the child is therefore at substantial risk of serious physical harm,” reads the decision written by Chief Justice Patricia Guerrero.

The case, involving Los Angeles County’s decision to remove a child from his father’s care after a positive drug test, drew the attention of a wide range of prominent legal scholars and addiction specialists. They argued for the father’s right to custody, stating that foster care removals and the resulting family separation may be more damaging to a child than staying at home with a parent who uses drugs.

Movement for Family Power Executive Director jasmine Sankofa saidthere is scant evidence of a causal link between parental drug use and child abuse. And as with excessive policing and family surveillance in the crack cocaine era, new laws meant to respond to dangerous drugs result in “children being weaponized,” with a disproportionate impact on Black and Indigenous parents, she said.

“Even though there’s evidence and experts who are out there screaming from the rooftops that this does not work, we’re still seeing lawmakers push these bills,” she said, “even though we know that something that they’re proposing won’t work and will only do more harm to families.”

Still, some said the California Supreme Court ruling did not go far enough. The state’s highest court declined to define “substance abuse” more specifically — such as how it is spelled out in the Diagnostic and Statistical Manual of Mental Disorders used by physicians and mental health professionals. Instead, the court left it to the state Legislature to define the term.

Brian Okamoto, an Orange County parent’s attorney, said the lack of a clear-cut standard has had “tragic consequences” for parents with children taken into foster care. 

“The dependency system is catching up to the science — that substance abuse is often a chronic condition, and it’s not simply a matter of choice of choosing drugs over children,” he said. “Whether or not families will remain a family shouldn’t depend on which courtroom or which counsel or which social workers are looking at the case.”

At the Thursday bill hearing inOlympia, Paula Reed, executive director of Children’s Advocacy Centers of Washington, argued the merits of a more restrictive law for fentanyl-using parents. Reed said she supports SB 6109, even though she recognizes the trauma that a child may experience being removed from home.

“I also believe we cannot ignore the increasing numbers of children who are dying from ingestion and exposure to fentanyl in their homes,” she said.

But parents’ advocates testified that the new law could undermine the 2022 Keeping Families Together Act, which took effect last summer. The new law is designed to decrease the number of children who enter Washington’s foster care system, and reduce racial disproportionality.

A change to legal standards for removal, and an increased reliance on “safety plans” that allow children to remain at home under supervision, has had dramatic results so far, according to an October Department of Children, Youth and Families report. Entries into foster care have plummeted by nearly 25% since the law went into effect, with the largest reductions occurring in Pierce and Yakima counties.

State Sen. Wilson said in an interview this week with The Imprint that her legislation “is in no way about undoing” the state’s Keeping Families Together Act. But she argues that children must be better protected during this unprecedented public health emergency.

“This is not an excuse to remove more kids and label parents as bad,” she said. “This is about finding a middle on this, making sure that whatever we’re doing is based on imminent harm to a child.”

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