Joint custody: DHS put her kids in foster care because she smoked weed

It's been six weeks, and Victoria Andrews can't get her kids out of foster care, where they were placed by Philly's Department of Human Services (DHS). Because she smoked marijuana.

Andrews (not her real name) is no drug dealer or even, she says, a habitual smoker. But it turns out that the child welfare system often sees little difference between marijuana smoking and heroin or crack addiction. And while marijuana alone rarely prompts DHS to take someone's children away, once a family is in the system, the slightest whiff can complicate things to an extraordinary degree.

"A parent gets involved [with DHS] for a multitude of reasons: Maybe they have mental health or housing issues; maybe their gas keeps getting turned off. If marijuana is one of those reasons, it can keep a child in foster care," says Kathleen Creamer, a staff attorney at Community Legal Services (CLS). Nationwide, states and localities are moving to ease penalties for marijuana possession. In Philly, District Attorney Seth Williams broke with his bare-knuckled predecessor Lynne Abraham and began issuing summary offenses, rather than misdemeanor charges, for small quantities of pot.

But in the child welfare system, marijuana use can often prove a disproportionate and devastating complication.

Vanessa Garrett Harley, deputy commissioner for the Children and Youth Division of DHS, acknowledges the issue, noting that family reunification can often be blocked "if you have a case that's already open for other reasons, and then allegations come out about using drugs — even if it's a drug like marijuana."

In Andrews' case, her children won't return until a judge is satisfied with her completion of a drug treatment program she says she does not need — and which she attends alongside individuals with serious addiction issues. "One person says, 'I'm here because I'm an alcoholic.' Another, 'because I'm on cocaine and heroin.' And I'm like, 'Wow, my story is small.'"

The circumstances that brought Andrews into the child welfare system were complicated, and quickly spiraled out of control. Her newborn's illness prompted a concerned doctor to call DHS; while DHS did not find negligence, they continued to check up on Andrews, and a few months later found structural problems in her home. By court order, she moved with her children to a homeless shelter; then she left, overwhelmed by the shelter's oppressive rules.

Months later, DHS and Philadelphia police caught up with her at her new home and took the children away.

Two days later, when Andrews went to court to get her kids back, she was told she would be drug tested. "Before you do that," she told them, "I should tell you that I smoked marijuana."

Andrews says she does not drink or do hard drugs. But in the aftermath of DHS taking her kids, she wanted to take the edge off. A neighbor offered her a drag from a blunt — and it was enough to change the course of her case.

Because she tested positive for marijuana use, the DHS lawyer recommended that she complete drug treatment — but, citing the good condition of her home, said the children should be returned to her. The lawyer assigned to advocate for her children, however, said they should be held in foster care while Andrews completed treatment — and the judge agreed.

"Housing was the real issue, and housing was solved," says Andrews' lawyer, who asked not to be identified to protect her client's anonymity. "And then the pot. In DHS-land, drugs mean addiction, which means court-ordered treatment."

If it were not for that one blunt, she says, Andrews would have long since had her children back.

"A positive result in a urine cup cannot tell you what type of parent this is," says Emma Ketteringham, director of legal advocacy at National Advocates for Pregnant Women. "It's an excuse to disrupt the family without any real evidence that the children are exposed to harm."

Studies consistently show that while blacks and Latinos are far more likely to be arrested for marijuana, whites smoke pot at a higher rate. And it's not just the counterculture: A 2010 article in Philadelphia magazine described booming "High Times on the Main Line ... the heady smell of marijuana ... floating out from Rittenhouse Square terraces, from suburban townhouse windows, from the living rooms of Chester County farmhouses."

None of these well-heeled stoners expressed fear of losing their children. But there are different rules for poor families, says Dorothy Roberts, professor at Northwestern University Law School and author of Shattered Bonds: The Color of Child Welfare.

"Substance abuse is one of the clearest examples of a double standard in the child welfare system, because we know that substance abuse cuts across all socioeconomic and racial lines. Yet the children removed from home because of substance abuse tend to be poor children and children of color."

DHS must strike a tough balance: keeping families together while ensuring that children are safe. Removing a child even for one night can be extraordinarily traumatic, but leaving a child in an unsafe environment can result in disaster.

Cases where DHS failed to provide oversight have prompted severe criticism, most infamously the 2006 death of Danieal Kelly.

Typically, child welfare removals skyrocket in the aftermath of a major scandal. And that's what happened after the Kelly case. But DHS says it has since taken a different path, decreasing the city's foster care population from 6,194 in 2006 to 4,323 so far this year.

"We call it a media panic," says Garrett Harley of DHS. "We're working very hard trying to get that number down. Because we know we don't make good parents." In the past, she says, "We were taking kids into care who didn't really have safety issues. They were people suffering from society ills."

Yet data compiled by the National Coalition for Child Protection Reform shows that Philadelphia has by far the highest rate of child removal of the five largest American cities.

A discriminatory approach to drug use shapes these inequities, and begins at childbirth when hospitals drug-test newborns or ask mothers about their drug history — prompting calls to DHS about mothers of color who admit to any marijuana use at all.

A call about drugs does not necessarily place a parent into the DHS pipeline: The agency does a quick assessment, and if there is no problem, says Garrett Harley, they will not take the case on.

But she criticizes hospitals for being too subjective, noting that the law "does not mandate drug-testing of newborns. The hospital determines who they test," she says.

A spokesperson for the University of Pennsylvania Health System rejected the accusations, maintaining, "Things such as race would have no influence on decisions about care." And a Temple University Hospital spokesman said "testing ... is provided consistent with each patient's unique clinical care needs."

But one local doctor, who spoke on the condition of anonymity, criticized his hospital's requirement that he report any prenatal marijuana use to DHS. He said that doctors should have flexibility in determining drug-related abuse or neglect, just as they do with suspicious physical injuries.

"When you talk to various hospitals, it's one of the concerns I've always had about it," says Garrett Harley. "Unfortunately, it often plays out as racially disproportionate and disproportionately [related to] class. ... Ask some of the hospitals at the Main Line. They're not testing mothers out there."