To make a long story short, my littlest, the now seven-year-old, is not biologically mine. It’s a rather long story full of abuse, neglect, a bitter custody battle, and about how she is actually my ex-fiance’s daughter.
In the midst of this long story, there is the sub-story of my battle with CPS. (They were not on my side, but are not allowed to assume custody of a child if a third party steps in.
At least that’s how it works in Ohio.) So, I’ve spent hours upon hours researching CPS, laws, what they can and can’t do, etc.
To answer your initial question of whether they can remove your child if you fail a drug test: no, they can’t. Technically, CPS cannot remove a child at all.
They may contact the police and have them remove a child because the baby is unsafe. Aside from that, they have to go through a judge. However, most parents don’t know that and simply hand over their children.
For longer answers, keep reading. We’re going to go over what CPS can and can’t do when you fail a drug test, the “safety plan” and some more tips about how to deal with CPS.
In this article
- Is Your Child Safe?
- What Can CPS Do If You Fail A Drug Test?
- You Can Refuse To Take A Drug Test
- A Case Plan Can Be Legally Binding
- Safety Plans Are Legally Binding Once Signed
- Other Things To Remember When You Have A CPS Case Open
- Getting A Lawyer Is A Great Idea
- In Conclusion
Is Your Child Safe?
One of the first things that both CPS and a judge or the police will do is look at how your drug use impacts your child. This is where things can get tricky.
I’ve heard of parents that used heroin and still kept their children because the social worker stated that you can still do drugs and be a great parent. Other times, smoking marijuana was enough to warrant a child removal.
The thing you need to remember is that it’s not about what the drug is, or even whether you do it in front of your children or not. The main factor that anyone will consider is whether your child is still safe.
If they are, you probably have nothing to worry about. If not, CPS can get a warrant from a judge or request assistance from the police to remove your child.
Usually, this will include drug abuse, but will also state something else, like neglect, unsafe living environment, etc.
What Can CPS Do If You Fail A Drug Test?
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There is a long list of things that CPS can do. There’s an even longer list of things that CPS can’t do but will try to do anyway. If you fail a drug test, and your child is safe, they can’t technically remove your child.
That doesn’t mean that it will have no impact on you, though. It can still affect both you and your little one.
Staying Clean Is Probably Part Of Your Case Plan
If you have a case plan or safety plan, sobriety is more than likely part of it. When you don’t maintain sobriety, it is documented.
This could come up later as one piece of evidence that you did not complete your case plan. That means that you might be slowly going towards removal, and your case will stay open longer.
It Will Be Mentioned To The Judge
CPS has to present their case to the judge. If they do want to remove the child and need a warrant, this can and will be mentioned. They also have to explain all of their decisions, such as why the case is still open.
Whatever the reasoning, you can trust that it will be said, and it can come back against you in the future.
Drug Abuse Can Be Cause For Removal If Other Factors Are Present
This one actually has a lot of grey area around it. While drug abuse itself might not usually be the cause for removal, there are quite a few things that go with it. If there is also abuse, neglect, insufficient medical care, etc.
CPS can state that the problem is drug abuse, which is why you are doing these things. In this situation, failing a drug test is a problem.
Failing one drug test is, however, much better than failing multiple drug tests. If you’ve passed several until now, try to focus on that in court with your attorney.
Removal Can Happen If You Have Your Kids Under Specific Conditions
If you have already been to court, and your children have been released to you under specific conditions, failing a drug test can be a reason for removal. Especially if it means that you are breaking the terms that you already agreed to.
Make sure to read any paperwork that you have carefully in order to determine if this is going to happen.
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Every County And Case Is Different
This is because every judge, and every social worker, is different.
One agency might not care about drugs like marijuana, but instantly shoot to remove a child based on drug abuse and neglect (because you’re abusing drugs) if you test positive for harder drugs, like meth.
Other agencies might disregard any type of drug abuse unless there is a problem with the child, such as lack of medical care.
If you’ve never dealt with children’s services before, just assume they will go the worst way and attempt to remove your children due to drug abuse. Remember, they have to be able to prove that your child is at imminent risk in order to do that.
You Can Refuse To Take A Drug Test
In order for CPS to conduct a drug test, you have to consent to the test. Your social worker might not tell you this. Instead, you might just be handed a cup and told they need a drug test, and that you have to comply.
(Some social workers really are bullies. Not all of them, but some of them.) However, you can refuse to take the drug test. If you’re going to do this, make sure you know the consequences of this as well.
Refusing A Drug Test Can Be The Same As Failing One
Some agencies and even judges assume that you were going to fail, which is why you refused to take one.
On the one hand, they won’t have any hard evidence that you failed a drug test. On the other hand, the judge might just assume you’re using drugs anyway.
This Isn’t Complying With Your Court Order Or CPS
If you have to maintain sobriety as a part of the condition to have your children returned home, this isn’t complying. You will more than likely be assumed to be using drugs, which means that it isn’t going to help your case.
You Need To Be Able To Back Up Your Actions
If you’re going to refuse to submit to a drug test, and still fight to get your kids back, you need to be able to back up why you aren’t willing to take a drug test.
The fact that you’re going to test dirty isn’t going to cut it. In that case, you might as well take the test. However, if you’re failing to submit to a drug test for other reasons, a judge might understand.
A Case Plan Can Be Legally Binding
While you might not be willing to take a drug test, you might be required to by law. When there is an open dependency case in court, CPS will more than likely file the case plan with the judge.
The judge can order that the case plan be followed, which means that you can be held in contempt of court. If you refuse to take a drug test, it can affect your legal rights.
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Safety Plans Are Legally Binding Once Signed
Safety plans are some legal loopholes that CPS can use. They cannot require you to sign one. There is no law stating that you have to sign one.
However, some agencies will state that if you do not that you will not be able to take your children home with you or otherwise coerce you to sign them. Once you sign them, a safety plan is considered legally binding.
Safety Plans Can Be Changed At A Moment’s Notice
Safety plans can also be changed. If a social worker sees you refuse to take a drug test, they can change your safety plan to include consenting to drug tests.
This means that one week it might be fine, and the next week it could mean that they will recommend to the judge that your children stay in foster care for a few more months.
You Do Not Have To Sign A Safety Plan
If you know you’re going to fail drug tests for marijuana, and it’s included in your safety plan, it’s a good idea to keep in mind that you aren’t legally required to sign a safety plan. They can’t make you.
They also can’t keep your child if they aren’t in danger. You can walk away with your baby in your arms.
However, there are those social workers that won’t tell you that. I heard a lot in the almost two years that I had to deal with them. I was there when the safety plan was signed.
I know they tell people that their child can go to foster care if they don’t sign it. If this is your personal situation, get a lawyer. A good lawyer if you can.
Other Things To Remember When You Have A CPS Case Open
When you’re working with children’s services to get your children back, or to prevent removal, there are quite a few things to keep in mind. These tips will help you navigate through the mess until you can find a lawyer to provide assistance.
Judges Listen To CPS
Whether your child is removed or not is ultimately up to a judge, but judges listen to CPS. If they say something, you had better be able to prove that they are wrong if you want to go against them.
Going into court and stating your case is not enough. You need evidence. If they say you failed a drug test, they might not always mention that you passed every other one.
You need to make sure that you have those records so you can inform the judge that you had a momentary relapse, and it’s under control now.
Have drug tests performed at a facility instead of using home drug tests that can easily be taken with someone else’s urine.
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The Guardian Ad Litem Is A Big Deal
In some custody cases, like mine with a little bit, you get a guardian ad litem. The abbreviation for this is GAL. When you are assigned one, reach out to them first. Second, keep in mind that they are a big deal.
When CPS wanted to remove the littlest, he saved it. When our social worker was screaming at me that I wasn’t her mom, he was the one that spoke up and said that I was.
They’re also pretty great in general because they aren’t worried about agency standards, etc. They simply look at what’s best for the child. A GAL is higher on the hierarchy than CPS, and apparently the prosecutor.
They Have To Prove That A Removal Was Necessary
Dirty dishes in your sink aren’t going to get your child removed from the home.
The worst that could happen is that a social worker makes it sound really bad in the report by saying the kitchen was filthy. Every child removal goes in front of a judge, and that evidence has to be presented.
Focus On Being The Best Parent You Can Be
Most people tend to focus on the wrong things during a CPS case or the custody battle. They downgrade the other parent.
If three people all do this to each other, it almost gets children put in foster care if social workers believe everything that was said. Some people try to focus more on the social worker and how they didn’t follow the procedure.
Another common thing people do is think that being overly honest will get them on the social worker’s good side. Telling them about drugs you did twenty years ago can hurt you.
Instead, just stop. Stop focusing on social workers, the other parent, or trying to say that the foster parent did this or that. What you need to focus on is you, and being the best parent you can be.
Focus on how to jump through the flaming hoops that CPS will inevitably throw at you. When you do, you’ll see more progress than ever before.
Getting A Lawyer Is A Great Idea
Having a lawyer present at every home visit is a good thing to do. This can guarantee that there is accurate documentation of everything. They can also give you legal advice that is in your best interest.
For example, you can call them before heading into a case management meeting to ask their opinion on things. They can inform you of your parental rights, too.
No, CPS cannot automatically remove your child due to a failed drug test. However, there are exceptions. For example, if your children are residing with you based on certain conditions that you follow, and one of them is sobriety.
If that is not the case, they must get a warrant to remove your children. They have to prove that there is a problem aside from you using drugs, such as neglect or abuse.