Blending Perspectives and Building Common Ground. Child Protection Laws and Policies


State laws regarding child abuse reporting, foster care and termination of parental rights set a tone for the consideration of substance abuse as a factor in child protection decisions.  Mandatory child abuse reporting laws identify who must report suspected child abuse or neglect and under what circumstances.  Most State child abuse and neglect reporting laws do not explicitly mention substance abuse, but rather speak to physical abuse, sexual abuse, and neglect.  Generally these laws focus on parental behaviors toward children rather than potential conditions that may precipitate those behaviors.

Each of the seven state laws that did mention substance abuse as of the end of 1996, (California, Illinois, Iowa, Minnesota, Missouri, Oklahoma, and Utah) pertain only to infants prenatally exposed to drugs.  None of these reporting laws mention substance abuse beyond pregnancy (HHS/NCCAN, 1997b; HHS/NCCAN, 1998c) and most refer only to illicit drugs, not alcohol.  Most of these State child abuse reporting laws require that health professionals make mandatory child abuse reports regarding all infants who are known to be drug exposed at birth.  Minnesota's law includes considerable detail regarding the conduct of drug tests.  The Illinois law requires a report to the public health agency rather than the child protection agency.  California's law specifies that a positive toxicology is not in and of itself sufficient grounds for a child protection report, but requires that an assessment of the parent be conducted, and requires a child protection report if the assessment determines there is danger for the child.

These laws seek to bring particular children at risk of abuse and neglect to the attention of child protection agencies.  They also serve to emphasize prenatal exposure to illicit drugs rather than the longer-term risks (arguably more significant to a child's development) of living with a potentially neglectful or abusive substance abusing caretaker.  This factor can impede a substance abusing pregnant or post partum woman from seeking health care or substance abuse treatment for fear that admitting a problem will lead to the loss of her child(ren).

In addition to child abuse reporting laws, substance abuse is sometimes mentioned in the statutory criteria for termination of parental rights, particularly laws regarding when expedited adoptions are appropriate.  Several States have expedited adoption laws that mention substance abuse, but observers have noted that existing laws include significant flaws (Hardin and Lancour, 1996) which may include:  the degree of substance abuse that might lead to termination of parental rights is not specified; unsuccessful treatment attempts need not be demonstrated; and harm to the child need not be shown.  Some States' termination of parental rights statutes contain language describing when a parent's continued substance abuse may be considered grounds for terminating parental rights and how many treatment attempts constitute reasonable efforts to facilitate reunification (USGAO, 1998; HHS/NCCAN, 1997a).

As noted above, the Adoption and Safe Families Act (ASFA), passed in November of 1997, requires that decisions regarding permanency for children who enter foster care are to be made within 12 months of a child's entry into care.  This requirement creates a context of urgency around the provision of services to families with children in foster care that put special strains on the usual and customary course of substance abuse treatment plans.  Communities have very limited time frames within which to offer reunification services (including substance abuse treatment, as needed) before alternative plans must be made for the child.  And parents have the same limited time frames within which to demonstrate their readiness to provide a safe home environment for their children.  These factors also make it critically important that child welfare workers be able to judge accurately whether a parent is making sufficient progress in his or her rehabilitation program to reasonably expect the child could be returned to the parent within 12 months or shortly thereafter.