Massachusetts child welfare officials are warning that a provision buried deep in the ballot measure to legalize marijuana could effectively tie the hands of social workers entrusted with protecting the state's most vulnerable children.
The little-noticed provision states that parents' marijuana use, possession, and cultivation can't be the primary basis for taking away custody — or other parental rights like visitation — unless there is "clear, convincing and articulable evidence that the person's actions related to marijuana have created an unreasonable danger to the safety" of a child. It would become law on Dec. 15 if voters greenlight Question 4.
Similar language is included in legalization measures in three of the four other states voting on such referendums next month, proponents say. It's meant to protect parents' legal use of marijuana just like their legal use of alcohol, they say. People who smoke a joint to relax instead of drinking a glass of wine shouldn't fear they'll get stung by a judge in a custody dispute, or risk having their children put into foster care, they argue.
But in a statement, the Department of Children and Families said it "believes every case is unique and our social workers need the ability to consider every factor when making critically important decisions about a child's well-being.
"Restrictions that could limit a social worker's ability to consider any substances, including marijuana, as a factor for child custody are troubling, especially given the unprecedented spike in DCF cases fueled by the opioid epidemic," the statement, from spokeswoman Andrea Grossman, said.
DCF is overseen by Governor Charlie Baker, who opposes legalization.
Some outside specialists say the provision could make it harder to support an allegation of abuse or neglect when the parent has been using marijuana, as compared with alcohol. That's because there is no comparable language in state law about alcohol.
The 98 words in question are included in a more than 8,000-word ballot initiative, which was written by supporters of the pro-marijuana YES on 4 campaign.
A spokesman for the group, Jim Borghesani, said it comes in response to cases in Colorado, where voters legalized marijuana in 2012 and recreational stores have been selling the drug since 2014. Parents in that state, he said in an e-mail, "in full compliance with the law, had their marijuana use/activity used against them in child custody actions."
Colorado's legalization measure did not have such language, and Laura Morsch-Babu, a spokeswoman for the Colorado Department of Human Services, said the criteria that dictate an intervention from child welfare personnel in the state remain the same.
Decisions about child welfare are based on many factors, she said. Regardless of the legality of a substance, the factor determining involvement of child welfare officials "is the impact that substance has on the parents' ability to provide care and supervision to their child."
Oregon, one of the other legalization states, did not change its laws regarding child abuse and neglect, either — and child welfare workers treat the use of marijuana the same as any other legal intoxicant, according to Department of Human Services spokesman Gene Evans.
"For us, the fact that a parent uses marijuana and has children is not the issue," he said. "The issue is whether use impacts parenting, decision-making, reaction time, and all the other skills needed to safely parent a child."
Under Massachusetts law, reports of child abuse or neglect are investigated by DCF. Social workers evaluate the child's household, including the parents and home environment, and make a determination about safety and whether the suspected child abuse or neglect is substantiated.
Massachusetts courts' view of parental substance use — whether legal alcohol or illegal drugs — has been broad, rather than specific. To act, taking away a child for example, requires a connection between the substance use and parenting capacity. A judge must find "current parental unfitness." So occasional recreational use alone may not be seen as a critical safety issue that prompts action.
Maria Mossaides, the state's independent child advocate, said she doesn't see the provision in the legalization initiative changing current practice. "Every use of a substance — legal, illegal, prescription — is going to be taken into account looking at parental capacity," she said. "That won't change."
Elizabeth Bartholet, a Harvard Law School professor, said she believes the section of the proposed law is comparable to the current standard in child welfare and she said she has no concerns about it.
Still, said Bartholet, a child welfare expert, "it does reduce the likelihood that use and even abuse of marijuana would count in and of itself as grounds for state intervention to protect children."
Sanford N. Katz, a professor of law emeritus at Boston College Law School, said he doesn't think the child welfare paragraph in the ballot measure has "any place in the law."
"Let some action occur and let it go before a judge to decide whether the impact has been negative" he said. "It's so case-by-case! For example, if you're legally growing marijuana and the child has access to it, that may be sufficient for social service intervention."
If the measure passes, lawmakers could tinker with it. Indeed, top legislative officials have already floated the general idea of making changes.
Senator William N. Brownsberger, a legalization supporter and co-chairman of the Legislature's judiciary committee, said he fully supports "the thrust of this provision — marijuana use should not disqualify a parent — but the specific language may benefit from further vetting."
Michael Cutler, a Northampton lawyer who helped write the ballot question, said the measure is necessary because there is scourge in the state of "canna-bigotry," a portmanteau of cannabis and bigotry. The measure, he said, would level the playing field as people get more used to seeing marijuana and alcohol as equally valid ways for adults to relax.
He said the measure is meant to protect parents in both DCF proceedings and in family court.
"The idea that people can come home and have a couple of beers or glasses or wine and no one would even think of taking their kids away, but someone who smokes [marijuana] when their kids go to bed — they live in fear," Cutler said. "Canna-bigotry in custody matters needs to end."
Some outside specialists sung the praises of the language hidden in the referendum.
Martin Guggenheim, a professor at New York University School of Law, said the provision "would be a big step forward in equalizing the rights of rich and poor parents by eliminating what should be an irrelevant factor in prosecuting child welfare cases."
Guggenheim, a national expert on child welfare law, said child protection is supposed to be about protecting kids who have already been harmed or are at imminent risk of harm.
Yet, he said, "Child protection statutes have been used for decades to control poor people and take away their kids, using marijuana use as pretense — where, on the other side of town, pot would be winked at."
Question 4 would legalize the purchase, possession, and use of 1 ounce or less of marijuana for adults 21 and older on Dec. 15. Recreational stores could open in 2018.
Joshua Miller can be reached at firstname.lastname@example.org.