This article is based on a presentation at the ABA Center on Children and the Law's 2019 Spring Conferences. Read other articles in the Conference Collection. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Editor’s Note: The harm reduction approach described in this article is important for all child welfare legal professionals following federal legislation in the Family First Prevention Services Act of 2018 that allows maintenance payment financial support for children who are placed with their parents in a substance use treatment placement. For more details about where these placements are available and can be advocated for or supported by attorneys and judges to best serve children’s and parents’ interests, Volunteers of America recently created a Family Based Residential Treatment Directory.
Parent defenders know the challenges of working with pregnant and parenting women who are involved with the child welfare system because of allegations that they use drugs. The child welfare system can seem stacked against these mothers, often removing their babies and imposing expectations and timeframes that can be difficult to meet before reunification can occur. This article recommends a harm reduction approach to advocating for parents accused of child neglect or abuse related to drug or alcohol use. Parent advocates can use this information to educate judges and child welfare agency professionals about harm reduction strategies, and how they can keep families together while promoting good health care and minimizing court and child welfare agency involvement in families’ lives.
The Families in Recovery Program
Since its inception in Canada 15 years ago, more than 1,500 women, their babies and families have benefited from the Families in Recovery (FIR) rooming-in program founded by Dr. Abrahams. It is the first combined care maternity unit in North America. The program supports women and their newborns to stabilize and withdraw from substances with the goal of keeping mothers and babies together to improve their health. The fundamental underpinning of FIR is that it is an “apprehension free space” where authorities do not remove children from their parents, and where the staff encourage breastfeeding for mother and baby to bond while supports are put into place for their discharge together from the hospital where they gave birth back into the community. This model has been shown to be cost effective, along with improving health outcomes for both children and mothers. The lessons learned from this work toward ensuring a “healthy sustainable community” provide the basis for this article.
Support Mothers through a Harm Reduction Approach
Rethink common approaches to problematic substance use. The conventional wisdom that pregnant women and parents should simply overcome their drug problems, stop their drug use, and achieve complete abstinence before addressing or even receiving help for any other aspect of their health and lives is harmful. This approach views those who don’t do these things as bad people who become neglectful or abusive parents.
Provide mothers who need treatment with high-quality, evidence-based care. With a harm reduction approach, health care providers, child protection workers, attorneys, and judges should [or would] base their understanding about the effects of drug use during pregnancy on scientific evidence, and view mothers who have used drugs as entitled to high-quality, evidence-based care if they need it, along with respect and support.
According to the Harm Reduction Coalition:
Harm reduction is a set of practical strategies and ideas aimed at reducing negative consequences associated with drug use. Harm reduction is also a movement for social justice built on a belief in, and respect for, the rights of people who use drugs. Harm reduction incorporates a spectrum of strategies from safer use, to managed use, to abstinence to meet drug users ‘where they’re at,’ addressing conditions of use along with the use itself.
The UNC Horizons program (in the Department of Obstetrics and Gynecology at UNC-Chapel Hill) provides a model for a harm reduction approach, proven to be effective at improving outcomes for parents with opioid use disorder and their children. Horizons is a substance use disorder recovery and relapse-prevention program for pregnant and/or parenting women and their children, including those whose lives have been touched by abuse and violence. The trauma-informed model of care focuses on both the mother and the child, offering “a range of residential and outpatient services, including prenatal and OB-GYN care, psychiatric services, individual and group counseling and medication-assisted treatment for opioid dependence.” The program also offers “assistance with finding employment, creating a budget and managing finances, as well as creating healthy relationships and healing from abuse and violence.”
Request fair, individualized assessments of mothers. In the child welfare context, a harm reduction approach recognizes that drug use is not necessarily incompatible with adequate child care. There are many kinds of substance use, some criminalized and some not. Some of the criminalized and stigmatized drugs pose far less health and safety risk than those that are legal – cigarettes are an excellent example of a lawful substance (nicotine) that can be quite harmful. And many parents use drugs, including alcohol and cigarettes, and are good parents. We can use this context to argue for fair and individualized assessments of parents faced with child neglect or abuse allegations.
Support keeping the child in the mother’s care. Courts should not base child custody determinations simply on past or current drug use. The World Health Organization and United Nations’ International Guidelines on Human Rights and Drug Policy instruct governments to “[e]nsure that a parent’s drug use or dependency is never the sole justification for removing a child from parental care or for preventing reunification. Efforts should be directed primarily towards enabling the child to remain in, or return to the care of their parents, including by assisting drug-dependent parents in carrying out their child care responsibilities. ”
Fight Stigma and Assumptions about Substance Use with Evidence
Myths, false assumptions, junk science and stigma abound when it comes to drug use, pregnancy, and parenting. Parent defenders must always advocate and educate based on the facts about drug use and fetal and child health, and from the truth that drug use often does not equate with inadequate parenting. While the drugs have changed over the years, the response is often the same:
- “Crack babies”. The moral panic and unproven allegations about “crack babies” born to women who used smokable cocaine in the 1980s caused a generation of largely black and brown children to be stigmatized as irreparably damaged, and many children to be removed from their parents’ care and custody, regardless of the parents’ ability to care for their children. The “crack baby” myth persisted despite scientific research proving that children exposed prenatally to cocaine did not differ from those who were not (although poverty impacted both groups of children). The stigma and assumptions about bad motherhood also persisted.
- Methamphetamine-exposed babies. Subsequent years have seen similar false assumptions made – and debunked -- concerning babies born to women who used methamphetamine during pregnancy. Those assumptions had similar devastating effects on children and families.
- Opioid crisis. The current opioid crisis is receiving more popular sympathy and a willingness to take a public health approach toward people with opioid use disorder, perhaps because the crisis has affected so many middle class and white people. However, people who are pregnant have not benefited from that sympathy. Mothers with an opioid use disorder are still seen as bad or dangerous parents, even though the medical fact is that some babies born to women who used some amount of opioid during pregnancy (including opioid-based treatment) have no ill effects, and those who do suffer the withdrawal symptoms known as “neonatal abstinence syndrome” can be treated for those temporary symptoms. The facts are that medication-assisted treatment for opioid use disorder (most often with methadone or buprenorphine) is recommended for women during pregnancy, withdrawal symptoms related to those medications are common and treatable, and breastfeeding is recommended. Further, keeping mothers and babies together, including through rooming-in and similar approaches have proven to work best when babies do have symptoms.
Based on this evidence, parent defenders can remind child protection workers and judges that, in child abuse or neglect cases, they must not rush to remove newborns from their mothers unless absolutely necessary. Like other allegations in a child protection investigation, the relevant inquiry is what the mother is doing as a parent and the risk of future harm to the child. The job of child protective services is to keep families together whenever possible, which includes understanding the myths and the facts about prenatal drug exposure. Birth outcomes are not child abuse. Babies may experience adverse birth outcomes of all kinds, and none should be considered child abuse.
Emphasize that Drug Use Does Not Equal Bad Parenting
A law review article that examined research on women who used drugs during pregnancy or as parents stated: “As research has repeatedly shown, a woman who uses drugs while pregnant or while parenting is not ipso facto an incompetent mother.” The article cited a University of Florida study that compared cocaine-exposed babies placed into foster care with babies who stayed with their birth mothers, finding: “The infants who stayed with their  mothers showed better neurological and physical development than those in foster care. As one commentator put it, separation from their mothers was more toxic than the cocaine to the foster care children.” In the realm of health-care-based drug testing, as Dr. Mishka Terplan (OB/GYN and expert in women’s health and addiction medicine) has said, “there’s nothing in a urine drug test that tells you anything about behavior . . . It’s not a motherhood test.” It is also critical to advocate for clients using the knowledge that race has a large impact on who is drug tested and who is reported to child protective services.
When health care workers, child protection staff, attorneys, or judges view women who use any amount of drugs as automatically a danger to their children, it can lead to harmful, costly, and medically unjustified interventions that separate mothers and newborn babies. The public health consensus is that such uninvestigated assumptions of danger harm children.
Advocate for the Best Health Care Approach for Parents and Children
The best, proven approach for parents with problematic substance use and their children focuses on minimizing drug exposure to parents and babies and emphasizes safe use rather than demands total abstinence. This may seem obvious since many of us use alcohol, tobacco, or other substances and consider ourselves fit parents, but we are not our clients. Often it helps to remind courts that many parents who use drugs do not suffer from problematic drug use that interferes with parenting.
For mothers who do have a substance use disorder (SUD), treatment must be accessible for them with their children. In the case of newborns, outcomes for mothers in treatment are better if mothers and babies are together. The questions relevant to child welfare evaluations for women with a SUD are:
- Is the person agreeing to appropriate treatment if needed?
- Did the parent start treatment if needed?
- Is the parent motivated and engaged with caring for her child?
Health care providers’ job is to support women during pregnancy and after the baby is born. When the child welfare and court systems are involved their true job (with the best health outcomes) is the same – to support mothers and babies. The best way to provide that support is by applying proven harm reduction principles. This requires using a trauma-informed approach that prepares more babies to be home with their families instead of separating them by focusing on improving the supports and other social determinants of health for mothers, babies, and families.
Sidebar: Key Harm Reduction Resources
Lawyers may find these resources useful to support use of a harm reduction approach.
- MacMillan, Kathryn Dee L. et al. “Association of Rooming-in With Outcomes for Neonatal Abstinence Syndrome: A Systematic Review and Meta-analysis.” JAMA Pediatrics, February 5, 2018.
Study found that opioid-exposed newborns who roomed-in with their mothers or other family members had improved health outcomes, shorter lengths of stay, reduced use of pharmacotherapy, and lower health care costs than children who received care in neonatal intensive care units.
- Holmes, Alison Volpe et al. “Rooming-In to Treat Neonatal Abstinence Syndrome: Improved Family-Centered Care at Lower Cost.” Pediatrics 137(6), June 2016, e2-e9.
Study found family-centered care program that treats infants with neonatal abstinence syndrome by providing prenatal parent education, involving family in prenatal monitoring and nonpharmacologic treatment, and caring for infants in inpatient hospital unit instead of NICU safely reduced pharmacologic care, length of stays, and health care costs.
- Newman, Adam et al. “Rooming-in Care for Infants of Opioid-Dependent Mothers: Implementation and Evaluation at a Tertiary Care Hospital.” Canadian Family Physician, December 2015, 61(12) e555-e561.
Study found rooming-in program significantly reduced use of pharmacologic treatment and average length of stay for opioid dependent mothers and their infants.
- Representative for Children and Youth & British Columbia Ministry of Children and Family Development. Promoting Access to Breastfeeding in Child Welfare Matters: A Joint Report, August 2018.
A joint report prompted by a high-profile legal case by a British Columbia child welfare agency and child representation office examining policies and practices to strengthen families’ capacity to care for infants, support breastfeeding, and prevent unnecessary removal of infants.
- Harm Reduction International
- Harm Reduction Coalition
Dr. Ronald Abrahams is a family physician in Vancouver, Canada, clinical professor in the University of British Columbia Department of Family Practice, founding medical director and senior advisor for the Fir (Families in Recovery) rooming-in program at BC Women’s Hospital (named a “leading practice” by the Canadian Council of Health Accreditation), and consultant physician at the Sheway Program.
Nancy Rosenbloom is a lawyer and Director of Legal Advocacy at National Advocates for Pregnant Women, a nonprofit organization that works to secure the human and civil rights, health and welfare of pregnant and parenting women.
 British Columbia Gov’t. Promoting Access to Breastfeeding in Child Welfare Matters, A Joint Special Report, August 2018; See also, U.S. Dep’t of Health and Human Servs. SAMHSA, Methadone Treatment for Pregnant Women, HHS Publication No. (SMA) 14-4124, Revised 2014 (breastfeeding recommended for new mothers receiving methadone treatment), available at .
 MacMillan, Kathryn Dee L. et al. “Association of Rooming-in With Outcomes for Neonatal Abstinence Syndrome: A Systematic Review and Meta-analysis.” JAMA Pediatrics, February 5, 2018; Holmes, Alison Volpe et al. “Rooming-In to Treat Neonatal Abstinence Syndrome: Improved Family-Centered Care at Lower Cost.” Pediatrics 137(6), June 2016, e2-e9.
 World Health Organization, UNDP, et al. International Guidelines on Human Rights and Drug Policy, 2019, Section III, 1.3.ii. See also, U.N. Report of the Working Group on Arbitrary Detention on its Visit to the U.S., Sept. 2017. (finding Wisconsin’s “unborn child abuse” proceedings lack “due process and serve as a deterrent for other women who require health care…This form of deprivation of liberty is gendered and discriminatory in its reach and application, as pregnancy, combined with the presumption of drug or other substance abuse, is the determining factor for involuntary treatment”).
 Hurt, Hallam, Children’s Hospital of Philadelphia. “Poverty More Damaging Than Gestational Drug Exposure.” Neonatology Update, Oct. 21, 2013; National Institute on Drug Abuse. Research Report, Cocaine: Abuse and Addiction, May 2009, 6 (“‘crack babies,’ or babies born to mothers who used crack cocaine while pregnant, were at one time written off by many as a lost generation…It was later found that this was a gross exaggeration.”)
 Kraft, Walter K. & John N. van den Anker. “Pharmacologic Management of the Opioid Neonatal Abstinence Syndrome.” Pediatric Clinics of North America 59, 2012, 1147; Jansson, Lauren M. et al. “The Opioid Exposed Newborn: Assessment and Pharmacologic Management.” Journal of Opioid Management 5, 2009, 47.
 MacMillan, Kathryn Dee L. et al., 2018; Abrahams, Ronald R. et al. “Rooming-in Compared with Standard Care for Newborns of Mothers Using Methadone or Heroin.” Canadian Family Physician, Oct. 2007; Holmes, Alison Volpe et al., Rooming-inTo Treat Neonatal Abstinence Syndrome: Improved Family Centered Care at Lower Cost.” Pediatrics 137(6), 2016; Nikoo, Nooshin et al. “Health of the Pregnant Women with Substance-Related Disorders, A Neglected Global Health Issue Requiring Combined Maternity Care Units.” Mental Health in Family Medicine 11, 2015, 26-35; Hodgson, Zoe G. & Ronald R. Abrahams. “A Rooming-in Program to Mitigate the Need to Treat for Opiate Withdrawal in the Newborn.” Journal of Obstetrics and Gynaecology Canada 34(5), May 2012, 475-481; Abrahams et al., “An Evaluation of Rooming In Among Substance-Exposed Newborns in British Columbia,” Journal of Obstetric Gynecology Canada, April 2010.
 Regarding cannabis use, experts have found no definitive causal relationship between marijuana use and adverse birth outcomes, including low birth weight, preterm delivery, or neonatal intensive care unit admissions. Mark, Katrina, Andrea Desai & Mishka Terplan. “Marijuana Use and Pregnancy: Prevalence, Associated Characteristics, and Birth Outcomes.” Archives of Women's Mental Health 19, 2016, 105.; Terplan, Mishka. “Cannabis and Pregnancy: Maternal Child Health Implications During a Period of Drug Policy Liberations.” Preventative Medicine 104, 2017, 46 (“human data have not identified any long-term or long-lasting meaningful differences between children exposed in utero to cannabis and those not.”)
 See Johnson, Nicole. “Illegal Drug Use While Pregnant is Not Child Abuse,” CLP Today, April 04, 2019 (reviewing In re L.J.B., 199 A.3d 868 (Pa. 2018), a Pennsylvania Supreme Court case holding that a mother’s use of opioids while pregnant is not civil child abuse).
 Vandewalker, Ian. “Taking the Baby Before It’s Born: Termination of the Parental Rights of Women Who Use Illegal Drugs While Pregnant.” New York University Review of Law & Social Change 32, 2008, 423, 439, citing Susan C. Boyd, Mothers and Illicit Drugs: Transcending the Myths, 1999, 14-16 (reviewing 14 studies demonstrating that women who use illegal drugs can be fit parents).
 Ibid. (referring to Melanie Fridl Ross. “To Have and to Hold: University of Florida Shows Cocaine-Exposed Infants Fare Better with Their Biological Mothers.” Science Daily, May 2, 1998. ).
 Bridges, Khiara. The Poverty of Privacy Rights, Introduction & 110-122, Stanford University Press, 2017; see also Armstrong, MA et al. “Does Adopting a Prenatal Substance Use Protocol Reduce Racial Disparities in CPS Reporting Related to Maternal Drug Use? A California Case Study.” Journal of Perinatology 35, 2015, 146.
 “Sanctions against parents under child protective services interventions should be made only when there is objective evidence of danger, not simply evidence of substance use. . . State and local governments should avoid any measures defining alcohol or other drug use during pregnancy as ‘child abuse or maltreatment,’ and should avoid prosecution, jail, or other punitive measures as a substitute for providing effective health care services for these women.” American Society of Addiction Medicine. Public Policy Statement on Substance Use, Misuse, and Use Disorders During and Following Pregnancy, with an Emphasis on Opioids, 2017; See also, American College of Obstetricians and Gynecologists Committee on Ethics, Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist, 2011, reaffirmed 2014.; National Perinatal Association. Position Statement, Perinatal Substance Use, 2017.