by Beam, Cris
I’m not suggesting that doctors shouldn’t be looking for signs of use of drugs like meth or cocaine in the hospital. But the American College of Obstetricians and Gynecologists, even as a moderate and mainstream voice in the medical establishment, has come out against newborn drug testing. It endangers critical trust between a mother and her obstetrician, the College claims, and mandated reporting can conflict with the therapeutic obligation. Patients have the right to informed consent and bodily integrity and shouldn’t be tested for anything against their will or knowledge. And as for the business of states penalizing women for their behavior during pregnancy: it’s a slippery slope, as all sorts of things (drug use, poor nutrition, prescription medication, depression) can affect a baby’s health too. Punitive policies discourage prenatal care, the lack of which also harms children—the very thing the drug laws were designed to prevent. Addiction, they say finally, is a disease and not a moral failing.
Robbyne and Doreen lived in a city, and an era, when using drugs could get your children removed but wouldn’t necessarily land you in jail. Now, in twenty-five states, it’s a crime to expose children—not just the fetus—to illegal drug activity, such as narcotics possession, sales, or manufacture. For example, it’s a felony to possess any controlled substance in Idaho, Louisiana, Alabama, and Ohio in the presence of a child. Also, crystal meth has eclipsed crack cocaine as the most highly legislated drug, and fourteen states have singled out the manufacture or even possession of methamphetamines around children as a particular felony.
The trouble with this is what happens to the children in such cases: the children go into foster care because the parents go to jail, and the parents don’t receive treatment for what many still consider to be a health issue, rather than a criminal issue. Drug treatment in prison is notoriously worse than what parents can receive on the outside. And if they’re afraid they’ll be locked up and have their children taken away, parents aren’t likely to ask for help early on.
In states where drug use isn’t criminalized as child abuse, many child welfare agencies are connecting with drug rehabilitation programs and referring or court-ordering parents into rehab. Studies have shown that parents who are given treatment earlier, in settings they can easily access, are more likely to be reunited with their children than parents who don’t receive treatment. And women who keep their kids complete treatment at a higher rate.
In one way, this is obvious: better drug treatment yields better parenting. If you’re a mom who’s using, you probably know you need help—and many mothers want it. Some don’t, or won’t, or can’t, accept treatment for reasons that range as wide and as deep as the range of human frailties: there’s mental illness, there’s ego, there’s community and loyalty and loss in the network of drugs, and there’s the protection drugs afford, the scabbing over of one’s own early traumas and scars. But if you live in a state where you’re going to be charged with child abuse for your addiction, or you know your kids will be taken away if you show up at a treatment site, you’re stuck regardless. You have to try to get sober alone (which has disastrously low success rates) or continue raising your kids while using drugs on the side.
For this sole reason, Robbyne is grateful that her children were removed; even after her son was taken at birth, she couldn’t get clean on her own. Once the children were gone, though, she continued to use for some months, and then missed them terribly. Unlike Doreen, who had landed a prison sentence, Robbyne could enter rehab and regain her kids.
For six months, Robbyne lived in a residential drug treatment program. She faced down her depression, memories of sexual abuse in childhood, and the trauma of a car accident—all of which she felt contributed to her addiction.
After Robbyne graduated from the treatment program, she fought to get her children back, but with the delays in child welfare and family court systems, it took another two years for her oldest two to come home. Caiseem, the baby, wasn’t returned until the following year. Robbyne, sober and determined, visited her kids at the agency regularly while they were in care; once, she saw a foster mom slug Bacardi straight from the bottle as she dropped them off. Robbyne demanded a new placement. Her daughter complained of sexual abuse; Robbyne called an emergency meeting on that case, and her kids filtered through several homes. It was torture to watch her kids leave with strangers she felt were dangerous.
And at that time, Robbyne said, there weren’t the kinds of programs and support available to parents that there are now. “I can honestly say that I needed that time to get me together,” Robbyne told me, leaning forward on the cane she still uses to walk. Robbyne is short, a good three inches shy of five feet, and the day we met she wore a pink sweater and big gold hoop earrings with another gold circle on a chain around her neck. Much about Robbyne connotes roundness—her jewelry, her body type, her cheeks that plump upward when she smiles. Her manner is soft and open, and her many Facebook pictures show her grandchildren piling on her lap or snuggling in her neck. She’s a young grandmother, her hair still dark and her skin still young, and she looks blissful in the role. “But if I’d had support groups and parenting groups or people to come into my home and help me and not be afraid they were going to take my kids if I said something—” Robbyne choked up and looked down at her hands. “If there was more support, I could have done it with the children at home. But the way things were back then, there was no option but removal.”
Robbyne says there are better programs now, and she works for CWOP, the nonprofit organization that didn’t exist when her kids were taken. CWOP provides biological parents who have kids in care with support groups, parent training, and advocacy. CWOP also created the first parents’ advisory group to the commissioner of ACS, so that for the first time ever, biological parents had some say in the system. ACS now has a division devoted entirely to preventive services—though the budget has been cut, then reinstated, always on less stable funding grounds than direct foster care —so when a child’s situation is determined to be somewhat risky but not bad enough to warrant removal, ACS caseworkers can suggest, and even fund, certain protocols. They can identify the treatment programs or support groups Robbyne had wished for, and then follow up sometime later, so the kids can stay at home. But many parents are hard-wired to panic at the mere mention of ACS, and much of Robbyne’s job is devoted to reeducation.
“There are moms out there who are too afraid to get help because they’re too scared of ACS: they think ACS is out to get them,” she said. “A lot of parents are unaware of how much the system has changed. I have to tell them—it really has changed.”
Or this is the idea. Of course, kids are still removed all the time, and determining a child’s risk and a parent’s commitment to improvement is entirely subjective, dependent on a caseworker’s personal experience and perception. In the case of drugs, even Robbyne knows there’s a lot of gray area. Some parents, she says, can’t or won’t get better. “But most parents just need help when drugs overpower them, and I want them to know they don’t have to be as afraid as before. People are listening to us now.”
Because drugs and alcohol are such potent plot points in the saga of child welfare, people often give them more stage time than they deserve. Even when drugs aren’t the obvious problem in a family’s life, judges and lawyers assume that they are.
Brooklyn’s Family Courthouse is a boxy building the color of stone on the corner of Jay and Myrtle in downtown Brooklyn. Inside, the five family court judges can oversee upwards of fifty cases a day; like the caseworkers and lawyers who represent the kids and parents, the judges are overworked and don’t have time to mull over nuance. They’ve seen what works and doesn’t in many families, and they often apply quick formulas to complicated family groups that result in a lifetime of positive bonds, or fractures and separations. And these formulas often revolve around drugs.
On one wintry November Tuesday, I spent the day with Lawrence Robinson, a lawyer with the Brooklyn Family Defense Project, which provides attorn
eys and legal counsel to about half of the several thousand cases that come through Brooklyn’s family court each year. Lawrence has since left the job, but at the time he had a rotating caseload of around a hundred clients, and when he was in court, he could attend five or six trials a day. He worked every weekend and kept extra suits and ties in his office, for the times he spent the night. He earned $51,000 a year.
On the day we spent together, Lawrence had five trials on his calendar. Two were with a “good” judge, two were with a “bad” one, and one case was being settled out of court, because everyone was amenable to the case plan, and both sides needed to simply agree on the details. With so few judges, Lawrence explained, each one developed a reputation; some are known for siding with ACS and keeping kids in foster care or terminating parental rights (these are the bad ones in his eyes), and others are more likely to try to keep biological families together.
Relatively speaking, very few parents are ever brought to trial for crimes committed against their children. For one thing, there’s the widespread sentiment that losing their kids, even temporarily, is punishment in itself. And then there’s the practical reality of criminal court: for a person to be convicted, his crime must first be proved. Child abuse is considered a crime against the state rather than against the child, so a state attorney’s office decides which parents to prosecute based on which cases they think could succeed. Mostly, these cases don’t stand up well; there’s often too little evidence, and child witnesses are notoriously challenged on their credibility. Also, a child has to testify against her parent, which can be traumatizing, and the parent, like any citizen, has the right to self-defense—which can lead to brutal cross-examinations. Often criminal prosecutors don’t want to put these kids through any more hell.
This means that nearly all child abuse and neglect cases are settled in family court (and even after a criminal case a child’s placement is determined there too). In family court, protocol and precedence rule the day. For instance, Lawrence says, judges often automatically order parents to undergo drug testing as soon as they show up in front of his bench—regardless of the circumstances that brought them there.
At one of Lawrence’s afternoon cases, a family investigation had been launched because of a phone call from a toddler’s grandparents. These grandparents didn’t like their daughter’s live-in boyfriend, so, with the hope of getting him thrown out, they called protective services. The courtroom for this case felt like a bad wedding, with the aisle dividing the two parties in the beige windowless room. The mother, her lawyers, and a few of her friends sat on the benches on one side of the court, and the grandparents, the ACS lawyers, and witnesses sat grim-faced and rigid on the other. Before we had even entered the room, the lawyers threw barbs at one another.
“You sure you don’t want to just drop this case?” the lawyer for ACS, a man in a rumpled suit clutching a pile of folders, said to Lawrence.
“You sure you don’t? My client did leave her child with a sober adult,” Lawrence shot back.
“I’m sure he wasn’t sober when she left,” the ACS lawyer said.
“You don’t know that,” Lawrence retorted sharply, and entered the courtroom.
When ACS responded to the grandparents’ call and went to investigate the apartment, I learned during the trial, only the boyfriend was home. The door was unlocked, and the boyfriend was passed out on the bed, with the baby sleeping next to him. The cop who was with the ACS investigator was on the witness stand.
“How many beer bottles did you see in the room?” the ACS lawyer asked the cop.
“I don’t know, there were some,” the cop answered.
“Did you see any on the floor?”
“Maybe.” The cop looked up to the ceiling, as if searching his memory.
“Did you see any on the windowsill?”
“Yes, maybe two.”
“OK,” the lawyer said. “So there were four or five beer bottles in the room with the baby.”
“Yes,” the cop answered, still looking a little unsure.
The case that day was actually a follow-up to the first hearing, held shortly after the investigation, when the child was removed from the home. At that time, it was determined that the boyfriend was unsafe, and he was ordered to move out. The mother, who had no prior convictions, displayed all of her child’s medical records, and had never been accused of abuse or neglect by anyone aside from her parents, was required to take a drug test as a matter of course. She tested positive for marijuana.
The mother, Lupe, was pretty, with rosy cheeks and lip gloss, chubby in her maternity jeans and her peach cable-knit sweater. Unlike some of the other parents Lawrence represents, Lupe met Lawrence at his office half an hour before the trial to talk about strategy and provide him with even more medical records to prove her maternal diligence. She had followed the instructions from the last hearing to the letter: she had thrown the boyfriend out and not seen him again, she had attended drug treatment and graduated, and her urine test was now clean. She claimed the grandparents’ call to ACS was based on an old family feud, and she rarely smoked pot—only with friends sometimes to relax, and never in front of the baby. She was a good mom, she said, and she was desperate to get her child back.
Still, the details of the trial focused on the long-gone boyfriend.
“Did your boyfriend tell you how many beers he would drink?” the ACS lawyer asked Lupe when she took the stand.
“Did he tell you if he preferred marijuana?”
“Did he tell you how many beers he drank when he smoked marijuana?”
“Did he tell you what his drink of choice was?”
“Did he tell you what his drink of choice was and if he would drink that when he smoked marijuana?”
“Did he drink his drink of choice along with beer when he smoked marijuana?”
The questions felt endless. This mother was no longer involved with the person in question, and I was confused: why wasn’t ACS trying to reunite mother and child when clearly this mother had jumped through all her hoops and then some? I thought about friends of mine who had also smoked pot here and there while raising children. The difference was, my friends’ parents didn’t think to use Child Protective Services as a weapon in their personal family battles. And my friends didn’t get caught.
Was it ACS’s job to fight against this mother, on the chance that this child could be harmed, and Lawrence’s job to fight for her because he was paid to do so, and the judge’s job to see the whole picture and make the right decision? But judges see fifty cases a day—how whole could their picture possibly be?
This judge was a “good” one in Lawrence’s eyes, and he ordered the baby back into Lupe’s care, as long as she continued to take her drug tests and come up clean. Lupe’s eyes welled, and she turned to hug her friend. Her parents walked stiffly from the courtroom.
5
Catch as Catch Can
FOR PEOPLE LOOKING TO adopt kids out of foster care, drug-addicted can be a very good set of words. They were for Shawn Wilson (no relation to Steve), who, along with his partner, Martin, was hoping to adopt a baby they would later name Noble through Episcopal Social Services of New York. Shawn and Martin picked Noble up when he was six days old, after Episcopal told them about the mother. Shawn was ecstatic.
“They told me she was a homeless woman who had been living on the streets, who had been doing drugs, with a history of mental illness, and I was like, ‘Yes, yes, yes! Thank you, God! She’s not going to be able to get him back!’”
Shawn hadn’t always felt this way. Like most people who consider adoption, he originally imagined a young, healthy birth mother for his child. “My vision of the perfect mom was this: she’s sixteen, she’s on her way to college, because she wants to be a doctor, but she accidentally got pregnant,” Shawn said, laughing lightly at the memory. Shawn is a strikingly handsome African American man in his mid-thirties, with a narrow face and a shiny shaved head. He can seem both elegant and silly at on
ce somehow, as if he belongs behind a university podium, but also on the playground rumpusing around with a bunch of kids. “She takes all her vitamins, and all I have to do is talk to her mom and dad and it’ll be just like Juno!”
It wasn’t like Juno; Shawn and Martin ultimately chose a path that he now wishes more parents would consider—New York City alone processes about sixty newborns a year who need adoptive parents. Noble, like many of these babies, was born with cocaine in his system, but so far Shawn says there haven’t been any real problems. I met Noble when he was two, and he was an outgoing and friendly child, running around with a shirt on his head that he called his hair and eating pizza from both fists. As far as developmental milestones go, Noble may be slightly behind, but Shawn says he isn’t concerned.
“I use those milestones as a loose guideline as to what I should expect from Noble,” Shawn said, emphasizing the loose. “Your kid’s gonna walk. Your kid’s gonna talk. We’ve been doing that for millions of years! I disagree with a lot of that milestone stuff too—because it talks very little about empathy, sympathy. What about a milestone when your kid can have empathy for another kid, or not lash out? Those are the kind of milestones I want to create.”
Noble’s first clear words were thank you. The only vestige of trauma from his time in utero, Shawn thinks, might be the way that he eats. As with the pizza, Noble always has to pack his food into both fists, then suck just a little bit out and close the fist up tight again. “Someone who’s doing a lot of crack is not eating a lot,” Shawn theorized. “So when something came down the pipeline, Noble was eating as much as he could—holding, saving. He spent months not knowing when the next food was coming, so now, so what if he has food in each hand? Eventually he’ll know he doesn’t have to do this.”