With Cannabis Legal, Minnesota Tweaks Child Welfare Guidelines

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Can a parent be investigated for child abuse for smoking a joint?  What if a child accidentally ingests an edible?

Do mandated reporters have to alert authorities when they learn a pregnant person is vaping marijuana?

Is it a child safety concern that a parent is growing pot at home?

These and other questions are being addressed by Minnesota’s Department of Human Services, three months after recreational cannabis became legal in the state. 

The answer to all of the above questions is no, state officials clarified in a recent online public forum, and in public statements. They are now training child welfare workers and spreading the word to residents about the state’s newly revised Child Maltreatment Intake, Screening and Response Path Guidelines.

The legalization of cannabis has not changed social workers’ duty to investigate concerns that caregivers who smoke marijuana may be failing to protect the health, safety or well-being of children. But they must now be more forgiving in certain instances. 

“We are trying to look at cannabis like alcohol,” Erin Klumper, a child safety consultant with the human services department said in an Oct. 11 video conference call describing the new guidelines to child welfare workers and the public.

Officials also want to inform mandated reporters of child maltreatment like doctors and teachers what’s newly acceptable, and what remains the same. Internal polls, surveys and questions to officials reveal some confusion, and as a result, the state is suggesting that professionals weighing challenging cases email the state for a “rapid consultation” at [email protected]. 

The guidelines are straightforward as to the new fundamentals: “Reports regarding alcohol or other drug use, including opium, cocaine, heroin, phencyclidine, methamphetamine, amphetamine, tetrahydrocannabinol, or their derivatives, or alcohol use by pregnant women, require a child welfare response,” they state. But absent “habitual or excessive” behaviors, health care and social service professionals “are exempt from reporting women’s use or consumption of cannabis or alcoholic beverages during pregnancy.”

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Cannabis became legal in Minnesota under a new political landscape in this purple state. The majority Democratic Legislature is the most diverse in state history, with women heading the House and Senate for the first time, and election of the first openly transgender lawmaker, Rep. Leigh Finke. 

This year, Minnesota lawmakers have passed legislation supporting abortion access, gender-affirming health care for youth, school meals for all children, and government assistance for people convicted of felonies. 

Recreational use of cannabis became legal in Minnesota in August, after meeting approval of Democratic Gov. Tim Walz. Under the law’s “full decriminalization,” Minnesotans 21 years and older can possess, use and grow marijuana in their homes. The same applies to cannabis products such as edibles. Proponents have long argued marijuana presents far less health and safety risks than alcohol, which is perfectly legal, and its criminalization disproportionately ensnares people of color.

There are some limitations. Marijuana remains illegal under federal law, which still classifies it as a controlled substance. And as yet there is no state licensing available for dispensaries outside of tribal lands, so plants must be grown in people’s homes and weigh no more than 2 pounds.

Minnesota’s new law also prohibits smoking or vaping cannabis products in schools and multifamily housing buildings. Day care owners must disclose to parents if they permit its use outside of normal business hours. 

Still, the state’s child welfare system has had to quickly adjust to the legalization of recreational use. During the October conference call, one listener asked state officials what would happen if a parent tested positive during their first prenatal appointment at a doctor’s office.

“The prenatal guidance has not changed,” said Amanda Lager, a state employee  working in the child safety and family preservation unit. “However, they shouldn’t be ‘screened in’ for child protection assessment or investigation until after the infant is born.”

(Lager explained this further in an email to those that attended the webinars that still had concerns. She said because cannabis is still a federally-defined controlled substance, CPS reports involving prenatal exposure must be made and do not need to show impact on the baby in order to be investigation-worthy.)

State officials advise Minnesota residents to consult a medical professional if they want to use marijuana while pregnant or breastfeeding, and call on parents to store cannabis safely in their homes in “child-resistant packaging, clearly labeled and locked up.”

When children are believed to have accidentally ingested cannabis, state officials emphasize that social workers will consider the age of the child, their cognitive or developmental needs, medical fragility, asthma or other respiratory conditions — and the type of marijuana product they swallowed. (“Gummies, shatter and dabs tend to be of a higher potency than smoking cannabis,” the new regulations state.) 

Workers will also consider whether the child swallowed or ingested the substance as a result of “control or punishment,” and whether it led to harm or illness requiring medical treatment. 

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Nationwide in 2020, alcohol and substance abuse was an “identified condition of removal” for kids taken into foster care in 39% of cases, according to federal data. The figure represents a more than 20% increase since 2000. Minnesota was among the states removing children due to substance use at rates higher than the national average. According to a separate report released by the Office of the Legislative Auditor, between 2014 and 2019, roughly 50% of child removals involved “parental substance abuse or alleged neglect,” a figure that matches the federal statistics. 

A study pre-published this year that is being considered for publication by the Review of Economics of the Household sought to evaluate whether the growing legalization of marijuana has led to an increase in foster care entries related to drug abuse. Three economics professors write that the opposite has occurred. They calculate that on average, fewer entries to foster care related to parental drug abuse occurred when a state legalized medical marijuana, a decrease of up to 18% after three years. 

The findings were different for legalization of recreational pot, however, suggesting “that when states permitted recreational marijuana use, there was no corresponding change in the number of foster care entries related to drug abuse.”  

But with legalization of cannabis growing nationwide — 24 states have legalized marijuana use to date — child welfare agencies have had to adjust prior practice. 

States including Texas, New York and New Mexico have passed laws ensuring that parents and guardians cannot be deemed unfit due to marijuana use alone.

But that has not ensured total protection for parents in states where cannabis is legal.

This fall, a New York City mother received a $75,000 settlement after she sued the local child welfare agency for wrongfully removing her newborn due to her marijuana use.

California was among the first states to legalize cannabis in 2016. But as recently as last year, it was still tweaking its child welfare codes. A law enacted last September requires the state’s Department of Social Services to update all regulations “to ensure that, when a social worker is investigating an alleged case of child abuse or neglect, a parent’s or guardian’s use or possession of cannabis is treated in the same manner as  a parent’s or guardian’s use or possession of alcohol and legally prescribed medication.”

The bill was sponsored by lawyers for parents accused of child abuse and neglect in Los Angeles County, and supported by the California chapter of the National Association of Social Workers.

“California has found that cannabis use, whether medical or recreational, is acceptable for adults. Thus, cannabis use alone should not be a basis for state intervention into family life,” the bill’s author is quoted as stating in a legislative analysis of the clean-up bill passed in 2022. “As is the case with alcohol and prescription medication, parents and guardians should be allowed to safely and legally use cannabis without fear of having their children permanently removed from their care, provided there are no other concerns regarding the child’s safety.” 

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Last year, cannabis was the drug most widely used during pregnancy in the U.S., according to the federal government’s Substance Abuse and Mental Health Services Administration. But there is much to learn about the impacts on children.

A study published this year in the International Journal of Environmental Research and Public Health examined the association between prenatal and postnatal exposure to cannabis, with a review of the children after they turned 5. The conclusions by the study’s 14 authors echoed earlier research suggesting that postnatal exposure can lead to behavioral and cognitive problems among children. 

But the association between prenatal exposure and childhood cognition and behavior “requires further investigation,” the study stated, noting: “Nevertheless, it is crucial to educate parents and parents-to-be about the potential risks of cannabis use (including smoking and vaping) during pregnancy and around young children.”

A federal government-funded study published earlier this year in the Preventive Medicine journal echoed similar unknowns. The authors cited a broad range of research findings on social issues related to children, youth and families and the growing legalization of marijuana. But they concluded that additional research is “clearly needed,” centering on the question: “Does legalization cause parenting impairment, family dysfunction, and negative child outcomes?”

That question and related issues remain to be answered, the researchers wrote.