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The dangerous intersection of maternal drug use and child custody

Children subjected to environments in which a parent or caregiver abuses drugs, including alcohol, are considered to be an at-risk population. In fact, as the federal Department of Health and Human Services notes, some 47 states and the District of Columbia have laws on the books that specifically seek to protect children from substance abusing parents.

In most cases, the issue that may spark enforcement action is exposure to illegal drugs in the home. But the abuse of drugs or alcohol by a pregnant mother has been known to trigger prosecutions, even in states like Texas where exposing a fetus to drugs during pregnancy is not technically a criminal offense.

Regardless of what prompts such prosecutions, one of the likely consequences of them if successful is that the parent's rights related to child custody are bound to be put in jeopardy. Authorities will seek to make the case that removing the child from the parent is the right way to ensure the best interests of the child.

But what constitutes a child's best interest is obviously something that can be subjective -- open to different opinions. Where the law doesn't offer specifics, prosecutorial discretion may fill the void. And very often, social and political pressures become motivating forces.

Recent reports by Pro Publica suggest such discretion comes into play perhaps more often than is necessary. In one piece, the organization tells the story of a woman who wound up going through criminal and child custody battles because she traces of Valium were found in her blood ahead of her delivery of a baby boy a year ago. The child's blood showed no traces of the drug.

According to the story, she faced some anxious times during the pregnancy and took a half tablet at two different points to help get her through. Experts say that size dose would be probably considered safe for an expecting mom, but she didn't have a prescription. Prosecution followed.

A related Pro Publica offering breaks down how the various states approach the issue of drug use during pregnancy. It notes that Texas law doesn't make it a crime, but that other laws are sometimes used to file child abuse charges in such cases.

Clearly, whenever challenges to parental fitness are raised it is crucial to get the help of an experienced attorney.

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