Under a bill passed last week by the South Dakota legislature as an anti-methamphetamine measure, people who use or distribute ANY hard drug in a location where children are present can be criminally charged with child abuse and neglect and be faced with civil proceedings to have their children taken away. The law builds on a measure passed last year that made cooking methamphetamine where children are present prima facie evidence of child abuse or neglect. South Dakota law already includes a provision defining illicit drug use or "abusive" alcohol use by pregnant women as child abuse.
Under the law, a child is defined as abused or neglected if his or her "parent, guardian, or custodian knowingly exposes the child to an environment that is being used for the manufacture, use, or distribution of methamphetamines or any other unlawfully manufactured controlled drug or substance."
South Dakota officials told DRCNet that the law does not apply to marijuana. Although marijuana is an illegal drug, it is treated separately from other illegal drugs and is not considered a "controlled substance" under South Dakota statutes, said Regina Wieseler, spokesperson for the state Department of Social Services Child Protective Services Program.
The measure was proposed by a state methamphetamine task force and championed by Republican Gov. Mike Rounds, whose office told DRCNet he will indeed sign it into law. The 33-member task force included ample law enforcement, social service, medical, and drug treatment contingents, but as is typically the case in the United States, it excluded the very people who were its subject: actual methamphetamine users.
"There is a significant risk to children where drugs are being used or distributed," Secretary of Human Services Betty Oldenkamp told legislators in one hearing. "Parents or caregivers have diminished capacity to provide care or nurture. There is a risk of second-hand smoke, there is a risk of needle-sticks and HIV transmission, there is the potential for the involvement of firearms. Children whose parents abuse drugs or alcohol are three times more likely to be abused and four times more likely to be neglected. HB 1258 seeks to remove any and all doubt that knowingly exposing children to a drug-oriented environment is within the definition of an abused or neglected child. It sends a strong message to the public that this constitutes abuse and neglect."
The measure is not limited to methamphetamines because the state is looking ahead, said Oldenkampf. "This was brought to our attention through the meetings of the methamphetamine task force, but the trend may move on to other drugs -- that's why all illicit drugs are included. But the measure does not include marijuana and it does not include drugs obtained through legal distribution," she added.
But while state officials had the requisite horror stories to tell -- one man on meth, believing he was being followed, left his child on a snow bank; one woman had her children removed because she was tweaking all night, sleeping all day, and neglecting her kids -- the numbers do not appear to support claims that methamphetamine abuse is an epidemic. According to Anne Holzhauser, director of the Department of Social Services, of more than 2,000 families being tracked for abuse and neglect reports since July 2004, only 7% were there for meth-related concerns. The number of children placed outside their homes for meth-related reasons now stands at about 100 in the state, Holzhauser told the legislature.
While South Dakota social service officials and lawmakers pronounced themselves well-satisfied with passage of the bill, advocates for the rights of parents, dissident lawmakers, and former South Dakota meth users contacted by DRCNet were less than enthused.
"This will be enormously harmful for children in South Dakota," said Richard Wexler, executive director of the National Coalition for Child Protection Reform. "It will make it that much more likely that children will be needlessly taken away and face the torment of needless placement in foster care. What the governor and legislature have done is take a swing at bad parents, but the blow will land squarely on the children. If they were really serious about helping children, they would be making drug treatment available on demand for everyone who needs it," he told DRCNet.
"South Dakota wants to go for the national record in tearing children away from their parents," said Wexler. "It already ranks fourth in the country in the rate of removing children by our measure, which compares the number of children removed over the course of a year to the total number of impoverished children. South Dakota already removes children from their parents at a rate almost three times the national average, and now the state is going to take its dreadful approach to child welfare and make it worse. We know from the research that those children's development will be compromised if the state resorts to foster care instead of drug treatment for the parents. And the more you overload a foster care system, the less safe the homes become and the greater the risk to the children. It is perfectly reasonable to decide on a case by case basis that a parent is unfit, but to automatically declare drug use child abuse is setting the stage for additional enormous harm to the state's children."
The state will not automatically prosecute or file child removal actions against drug-using parents, protested Department of Child Protection Services spokesperson Wieseler. "What could happen is that a petition could be filed, but it will be up to the state's attorney to look at the information and decide if the case will move forward in court. You have to look at the totality of the circumstances, but what this bill does is give us one more tool to work with."
"Presuming neglect based on a single unconfirmed alcohol or drug test does not protect children", said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "Such a law will deter women from getting the prenatal care that can help them and their babies and will result in too many unnecessary and traumatic removals of children from families that love them and can care for them," she told DRCNet. "States that have implemented similar policies have removed children from new mothers who tested positive for a drug given to them during labor, from women receiving federally approved and successful methadone treatment, from women who had false positives, and from women who in fact have drug problems -- but who can nevertheless provide love and care for their children."
Instead of trying to punish families, said Paltrow, lawmakers would be better served by seeking to help them. "Providing family treatment services works and is cost effective," she said. "Presuming neglect and involving the child welfare system is extremely costly, fails to protect the children who really need it, and transforms mothers or pregnant women with health problems into child abusers even before they have had a chance to parent."
But helping drug using parents is not what legislators had in mind, said state Rep. Thomas Van Norman (D), one of the representatives who opposed the bill. "I asked for $100,000 for drug treatment in that bill. No one would second my amendment," he said.
"I voted against that bill because I am concerned that elevating all these child care issues to criminal offenses and making these new laws will not really address the problem at hand, but will leave poor parents with even fewer legal protections," Van Norman, whose district includes several Indian reservations, continued. "We're moving toward a police state where everything you do is a crime, and the state can threaten you with that. That is a really regressive approach," he told DRCNet.
What is needed is not more anti-drug laws but economic development, said Van Norman. "People don't realize how hard the economic situation is here," he said. "We have to make improvements; we haven't invested in schools and after-school programs for kids, we don't have any public transit, we don't have enough jobs, and the ones we do have don't pay enough. Native Americans make up 8.5% of the state's population, but 36% of the women prisoners and 29% of the male prisoners. Instead of dealing with the real problems we face in rural South Dakota, and not just on the reservations, it seems the policy is just to lock everybody up."
"To take a child out of the home hurts the hearts of Native American people. These are the descendants of the people who were massacred at Wounded Knee. Historically, the white man took their children, sent them to far away schools, and now the state of South Dakota wants to do this. You know, even with our best screening, we still can't avoid getting bad foster parents. A lot of times, it is better to keep the kids with their parents. Many of these problems have to do with alcoholism or drug abuse, but the solution is not taking the kids away; instead we need to have treatment available. If you're a doctor or lawyer, you get rehab; if you're a poor white or an Indian, you get your kids taken away."
One former meth-using couple, who asked that they not be identified, was also skeptical of the bill's intentions. Both members of the couple served prison sentences for meth, while their son stayed with his grandparents. The family was reunited once the parents got out of prison. "This is fucking ridiculous," said the father. "This law is totally unnecessary. If they have evidence of neglect or abuse, they can already file charges. This seems to be less about protecting kids than finding yet another way to punish drug users," he told DRCNet.
Some meth-using parents do abuse or neglect their kids, he conceded. "That may indeed be the case, but they don't need a new law for that," he said. "When my wife and I were arrested, we were caring for our son. We didn't neglect him, and you can bet that if we had been, the state would have been all over us and he'd probably be in foster care." As for how the child is doing now, he said, "Well, he's in eighth grade and he just made the honor roll."