Can DSS take my children away because I use marijuana? The short answer is yes... although, like most legal questions, it depends...
As a practical matter, DSS will not ordinarily come to your house with a police officer and remove your children from your home because someone has told them that you smoke marijuana.
On the other hand, they can remove a child for drug use - and will, if the drug use is causing harm to the children. Use of heroin, cocaine, or other "hard" drugs will often result in situations where a child is placed in danger. DSS may get involved, and law enforcement may take your children into emergency protective custody.
Marijuana use is more likely to arise as a secondary concern - once DSS has gotten involved, you may be subjected to drug tests. Failed drug tests, even for a "not-quite-legal" drug like marijuana, can result in removal of the children, loss of custody of the children, or even termination of parental rights.
Be aware that, while many younger people now accept marijuana use as normal and do not consider it harmful, slightly older and more conservative judges sitting on the bench in the family court may wholeheartedly disagree...
When Can DSS Take My Children in SC?
The last thing any parent wants to experience is a DSS worker at their door with a uniformed police officer...
SC Code Section 63-7-1660 says that DSS can file a petition with the family court:
...to remove the child from custody of the parent, guardian, or other person legally responsible for the child's welfare if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be safely maintained in the home in that he cannot be protected from unreasonable risk of harm affecting the child's life, physical health, safety, or mental well-being without removal.
Or, in some cases, they can remove a child on an emergency basis with the assistance of law enforcement and then file the petition.
What is Emergency Protective Custody?
SC Code Section 63-7-620 says that a law enforcement officer can take "emergency protective custody" of a child without the consent of the parents or guardians when:
- "The officer has probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in substantial and imminent danger if the child is not taken into emergency protective custody, and there is not time to apply for a court order pursuant to Section 63-7-1660;"
- The child's parent, parents, or guardian has been arrested and the parent does not consent in writing to another person taking custody of the child; or
- A child has become lost and law enforcement cannot locate the parents or guardian.
What's the Procedure if DSS Takes My Children?
Reunification is supposed to be the policy, and, after a child or children have been removed from a home, the goal is to return the children to their home once it has been determined that the home is safe.
What's the procedure?
- DSS must be notified immediately if a child is taken into emergency protective custody;
- DSS must conduct a preliminary investigation within 24 hours of removal to determine whether grounds for removal exist, whether the child can be placed with a relative, and what corrective action must be taken before the child can be returned home;
- DSS must initiate removal proceedings in the family court pursuant to Section 63-7-1660 "on or before the next working day after initiating the investigation;"
- A probable cause hearing must be scheduled within 72 hours of a child's removal; and
- If abuse or neglect is found, a safety plan or treatment plan is put into place by DSS - if the parents or guardian comply, the child is returned to the home.
Will DSS Take My Children Because I Smoke Marijuana?
At every stage of the removal and reunification process, drug use can affect the decisions of DSS and the family court - including marijuana use.
Emergency Protective Custody:
SC Code Section 63-7-620 authorizes emergency removal of an abused or neglected child, and goes on to say that, in cases of physical abuse, an officer "may take emergency protective custody of other children in the home if a threat of harm to them is further indicated by factors including ...alcohol or drug abuse if known or evident at the time of the initial contact..."
SC Code Section 63-7-1640 says that the family court can authorize DSS to "terminate or forego reasonable efforts to preserve or reunify a family" when "the parent has a diagnosable condition unlikely to change within a reasonable time including ...alcohol or drug addiction ...and the condition makes the parent unable or unlikely to provide minimally acceptable care of the child."
SC Code Section 63-7-1660 creates a presumption that a newborn child is abused or neglected and cannot be protected without removal from the mother's custody if either the child or mother fails a drug test:
It is presumed that a newborn child is an abused or neglected child as defined in Section 63-7-20 and that the child cannot be protected from further harm without being removed from the custody of the mother upon proof that:
(a) a blood or urine test of the child at birth or a blood or urine test of the mother at birth shows the presence of any amount of a controlled substance or a metabolite of a controlled substance unless the presence of the substance or the metabolite is the result of medical treatment administered to the mother of the infant or the infant...
That includes marijuana, which is still a controlled substance under SC law.
Drug Treatment and Drug Testing by DSS:
SC Code Section 63-7-1690 authorizes DSS to require a parent - or any other adult living in the home - to complete a substance abuse treatment program and submit to random drug tests before the child is returned to the home.
Foster Care and Permanency Planning:
SC Code Section 63-7-1700 requires a foster care review and permanency planning hearing be held within one year after a child is placed in foster care.
If the child was removed from the home due to drug use, the parents must be drug tested before a decision is made as to whether the child will be returned to the parents:
When determining whether the child should be returned, the court shall consider all evidence; if the removal of the child from the family was due to drug use by one or both parents, then a drug test must be administered to the parent or both parents, as appropriate, and the results must be considered with all other evidence in determining whether the child should be returned to the parents' care...
Child Abuse Registry:
SC Code Section 63-7-1940 states that a mother must be placed on the Central Registry of Child Abuse and Neglect if a newborn child tests positive for a controlled substance (including marijuana):
At a hearing pursuant to Section 63-7-1650 or 63-7-1660, at which the court orders that a child be taken or retained in custody or finds that the child was abused or neglected, the court:
(1) shall order, without possibility of waiver by the department, that a person's name be entered in the Central Registry of Child Abuse and Neglect if the court finds that there is a preponderance of evidence that the person:
...(d) gave birth to the infant and the infant tested positive for the presence of any amount of controlled substance, prescription drugs not prescribed to the mother, metabolite of a controlled substance, or the infant has a medical diagnosis of neonatal abstinence syndrome, unless the presence of the substance or metabolite is the result of a medical treatment administered to the mother of the infant during birth or to the infant...
Termination of Parental Rights:
When a parent is addicted to drugs and has either failed to complete drug treatment or has refused to participate in drug treatment, SC Code Section 63-7-2570 allows the family court to terminate their parental rights:
The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:
(i) the parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, addiction to alcohol or illegal drugs or prescription medication abuse; and
(ii) the condition makes the parent unlikely to provide minimally acceptable care of the child.
(b) It is presumed that the parent's condition is unlikely to change within a reasonable time upon proof that the parent has been required by the department or the family court to participate in a treatment program for alcohol or drug addiction, and the parent has failed two or more times to complete the program successfully or has refused at two or more separate meetings with the department to participate in a treatment program.
If DSS is attempting to remove your children from your home, or if law enforcement has taken your children into emergency protective custody, you are probably panicking and may be ready to tear down the courthouse to get your children back.
Get an experienced family court attorney on your side immediately. Your Myrtle Beach family court lawyer on the Axelrod team will answer your questions, advocate for you with DSS and the family court, and help you navigate the often infuriating and complicated process of reunification with your children.