Thursday, 29 June 2023 09:03

A Mother’s Worst Nightmare

Federal law has put thousands of women on anti-addiction medications like Suboxone into an impossible bind: Give up your treatment or risk losing your child.

Written and reported by Shoshana Walter
Data analysis by Melissa Lewis

This article is a partnership between The New York Times Magazine and Reveal from The Center for Investigative Reporting.

One morning in the summer of 2020, Jade Dass woke up and vomited. She assumed she was hung over; she’d been depressed lately and sometimes self-medicated with too much wine. But then a woman in her online counseling group suggested that she might be pregnant. Dass looked in the mirror and realized she was probably right.

At 26, Dass had spent the previous 10 months in recovery from an opioid addiction. Her boyfriend of three years, Ryne Bieniasz, was in recovery, too. Since getting out of rehab in 2019, they had been trying to re-establish their lives, but they had trouble finding work and a place to live. Eventually they made their way to a remote horse farm east of Phoenix, doing odd jobs in exchange for housing. They didn’t have a car or close friends or much in the way of family support. Even so, Dass longed to be a mother; she thought she would be good at it.

To help with her recovery, Dass had been taking Suboxone, a medication that binds to the receptors in the brain that crave opioids, preventing withdrawal without creating a high. She was concerned that it might affect the developing fetus, but a health care provider, she says, assured her that she should continue taking it. The advice seemed counterintuitive; pregnant women are routinely urged to abstain from alcohol, tobacco, even ibuprofen. So Dass did her own research. Everyone from the American College of Obstetricians and Gynecologists to the Centers for Disease Control and Prevention said the same thing. Pregnant women with opioid addiction should be encouraged to take doctor-prescribed synthetic opioids such as buprenorphine, the main component of Suboxone, or methadone, which has been used to treat heroin and other addictions for almost six decades. Weaning off these medications could trigger withdrawal and contractions that could result in a miscarriage, premature birth or cause a person to relapse.

The one downside, Dass learned, was that some newborns show signs of withdrawal, such as trembling or fussiness. The symptoms are temporary and treatable, often with skin-to-skin contact, rocking and breastfeeding. Arizona’s Medicaid agency was unequivocal: “These medications are safe for the baby.” Reassured, Dass continued taking Suboxone. At seven months, a doctor confirmed that the fetus was healthy.

Eventually, Dass says, Bieniasz’s father sent them money to buy an old Subaru. The couple drove north across the Arizona desert to Sedona, and Bieniasz found a job as a line cook at a French restaurant, making $16 an hour. Rent was sky high, so he and Dass parked at a local campground where workers from the area’s hotels and spas had built a makeshift community. The plan was to sleep there as they saved up for an RV.

Around midnight on Jan. 31, 2021, Dass’ water broke. Bieniasz rushed them to Verde Valley Medical Center, and the baby was born 11 hours later, weighing almost 7 pounds. She had her mother’s light brown skin, her father’s slightly drooping eyes and nearly perfect scores on her Apgar tests, a standard assessment of newborn health. Dass couldn’t stop staring at her daughter. “She was a part of me, like if someone took my heart and it was now separated from me and I could see it over there,” Dass told me.

Dass was still cradling her newborn an hour later when a nurse announced the baby might be transferred to another hospital if she showed signs of withdrawal. Dass was stunned. Her daughter, according to medical records, lacked any withdrawal symptoms. Both of them had been drug-tested, and the only substance in their urine was Suboxone. She was planning to breastfeed and begged the nurse not to take the baby: “She needs to be with her mother.” Dass was so upset that she barely registered what else the nurse said: They would be contacting the Department of Child Safety, Arizona’s child welfare agency. Verde Valley, like many hospitals throughout the country, was required to report newborns exposed to substances in utero, including prescribed medications such as Suboxone.

A child welfare report can result in little more than an assessment of a family’s circumstances and referrals to services. But other times, a report can lead to an extensive investigation. No agency tracks how many new mothers have been investigated for taking legally prescribed medications, but after sending 100 public records requests to every state and the District of Columbia, I found thousands like Dass who have been referred to child welfare authorities, their lives suddenly under scrutiny, their newborns sometimes placed into foster care for weeks, months or indefinitely.

Dass and Bieniasz knew their lack of housing would be seen as a red flag, and they scrambled to reassure the investigator assigned to the case, a recent college graduate named Carmen Pugliese, that they had the situation under control. Dass’ father was pitching in to help them buy the RV, and they had saved enough money to stay in a hotel. They purchased supplies for the baby – a portable crib, diapers and wipes, a breast pump, onesies, swaddles, shampoo.

But Dass said that Pugliese seemed to have concerns about her past, specifically a nine-year stretch when Dass had been in and out of the child welfare system because of her parents’ abuse and neglect. During video calls at the hospital, Pugliese quizzed Dass about her history of addiction: what she used (counterfeit OxyContin that turned out to be fentanyl); for how long (about a year, starting in 2018); and how she ended up in recovery (after an arrest for trespassing).

Dass reacted as she often did when she felt cornered, trying to protect herself by bending the truth in ways that would come back to haunt her – in this case, being evasive about where she was living and falsely claiming that she had started taking pain pills because of a back injury when the real reason was some combination of depression and anxiety.

The Arizona Department of Health recommends that hospitals keep substance-exposed newborns for five to seven days to monitor for potential withdrawal symptoms. During those early days, according to Dass’ medical record, she caressed her daughter, was caring and attentive, and seemed to be adjusting well to her new role. But some staff members told the investigator that Dass had a “flat demeanor,” that she wasn’t holding the baby as much as they thought she should and that Bieniasz disappeared for hours at a time (he said he had to go to work). (A spokesperson for the hospital said they were not able to verify the details in the DCS report, but that “Verde Valley Medical Center does cooperate in DCS investigations generally” and “we are committed to treating all patients with dignity and respect.”)

Bieniasz couldn’t contain his outrage at how they were being questioned. After he was ordered to submit to a drug test, Pugliese noted, he accused the employees at the testing facility of being Nazis who were trying to help steal his child. (Bieniasz declined to discuss any aspects of this story.)

“So people that used to do drugs aren’t allowed to have kids?”

jade dass

On their eighth day in the hospital, while Bieniasz was at work, Pugliese made a surprise visit to Dass’ room, accompanied by a nurse and a security guard. She handed Dass an emergency order to surrender the baby to temporary state custody. “The parents are using illicit substances,” Pugliese had written in support of her petition, discounting multiple drug tests to the contrary. She wrote that the baby showed withdrawal symptoms at birth, contradicting Dass’ hospital record. She also noted the parents’ lack of stable housing and Bieniasz’s behavior, which she described as “erratic and bizarre.” Dass had to surrender her daughter immediately. (Pugliese declined to comment for this article.)

Dass read through the order, desperate to stop the inevitable. “So people that used to do drugs aren’t allowed to have kids?” she asked. Pugliese, Dass remembers, did not answer the question. Dass turned to her daughter and told her that she loved her. Then she handed the baby to the nurse and watched them walk out of the room.

In 2014, child welfare advocates began flagging an unfolding crisis: a generation of children growing up in families ravaged by opioid addiction, tens of thousands of those children exposed to drugs in the womb. By one count, a substance-exposed baby was born every 19 minutes in the United States; cases of neonatal abstinence syndrome, or withdrawal, increased fivefold from 2000 to 2015. Foster systems became so overwhelmed that some agencies began housing children in offices and cars.

This wasn’t the first drug epidemic that had sweeping consequences for addicted mothers and their infants. A few decades earlier, states had responded to the growing crisis of “crack babies” by arresting hundreds of new mothers – overwhelmingly Black – and classifying substance use during pregnancy as a form of child abuse or neglect. Removals became the default response; from 1985 to 2000, the number of children in foster care more than doubled.

The opioid crisis, which largely impacted White communities, provoked a vastly different response. After helping fund Suboxone’s development in the 1990s, the federal government began allowing certified doctors to prescribe buprenorphine out of their offices, a radical shift in approach to addiction treatment. Then, in 2016, as overdose deaths surged, Congress passed the Comprehensive Addiction and Recovery Act, or CARA, authorizing $181 million every year for prevention-and-treatment programs and further expanding access to medication-assisted treatments, or MAT.

The law also included a one-word change to federal child welfare policy that would have monumental consequences. Federal law had long required newborns vaguely identified as “affected by” illegal drugs to be flagged to child protective services. In this new iteration, lawmakers removed the word “illegal.” Now, hospitals in the states receiving certain federal funds to support child abuse programs – a total of 48 states; Washington, D.C.; and Puerto Rico – were required to notify authorities any time a newborn was “affected by” any substance, legal or illicit. The federal law made clear that notifications are not the same as reports of child abuse or neglect, which automatically trigger investigations.

At the time, lawmakers claimed the goal was to identify mothers who were addicted to prescription opioids so that child welfare agencies could refer them to the services they needed. “This is a step forward for vulnerable babies who, due to an opioid dependency, will begin their lives facing enormous challenges,” Pennsylvania Sen. Bob Casey, who helped write the legislation, said in July 2016.

But each state was free to implement the law in its own way. Many responded by expanding child abuse reporting requirements to include the use of prescription medications during pregnancy. Even notifications, in certain states, resulted in investigations for abuse or neglect. In some places, a positive toxicology test was seen as evidence that a newborn was “affected by” a substance. States such as Arizona, where MAT use was already being reported, doubled down on investigations. DCS “must investigate any call” to the agency’s child abuse reporting hotline “that meets the statutory definition of abuse or neglect,” a spokesperson, Darren DaRonco, said in a written statement. (DaRonco declined to comment on Dass’ case but said that DCS only investigates women on prescription medications if there are other concerns for a child’s welfare.)

No one knows how many people have been reported for MAT use in pregnancy since the 2016 law went into effect. Most states don’t collect substance-specific information or they classify that data as confidential. Over the past year, I worked with my colleagues at Reveal from The Center for Investigative Reporting, a nonprofit newsroom, to track down that data. In the eight states and Washington, D.C., that provided information, we found that almost 3,700 women with only MAT in their systems were reported – no other substances were noted. Providers in Kentucky, a center of the epidemic, turned in nearly 700 women on prenatal MAT from 2017 through 2020. In Arizona, which doesn’t track buprenorphine cases, hospitals reported about 400 new mothers who only had methadone in their systems.

We also found women who were reported after taking antidepressants, anxiety and ADHD medications, and even over-the-counter cold medicine during pregnancies. Some women were reported after testing positive for the fentanyl in their epidurals.

States are even less forthcoming about how many MAT-exposed newborns are placed into foster care, though we identified at least 40 across the country, including 16 who were never returned to their families. In Arizona, which keeps better data than most states, 16 babies exposed only to methadone were removed from their parents in 2021 and 2022. In one 2019 case, a West Virginia judge allowed the state to cut off payment for a mother’s Suboxone, prompting her to relapse, and then terminated her parental rights. “I always have a problem with people being on Suboxone to begin with, and that’s my position,” the judge said during one hearing.

Caitlyn and Derek Carnahan at home in Oklahoma City in May with their son, Canon, who was placed in foster care for eight months after a case worker questioned her use of a prescription drug. Credit: September Dawn Bottoms for the New York Times

“It’s like a sick game,” Caitlyn Carnahan, a mother in Oklahoma whose baby was taken for eight months in 2019, told me. “They don’t want you on illicit street drugs, so here, we’re going to give you this medicine. But then if you take this medicine, we are going to punish you for it and ruin your family.”

After their newborn’s removal, Bieniasz and Dass checked into a motel, lugging the baby gear they had brought with them to take their daughter home. “It was just like pure despair,” Dass told me. “I don’t even know how to explain it. It didn’t even feel real.” But Dass believed it wouldn’t be long before the baby would be returned to them.

The first chance they had to plead their case came the following day at the “team decision-making” meeting with the DCS investigator and a facilitator. An agency pamphlet describes these meetings as an important opportunity for parents to present their perspective and discuss a plan for regaining custody. “DCS needs to listen to what you have to say,” it reads. “Your opinion matters!”

Dass took the directive to heart. As she researched the efficacy of Suboxone and the importance of the mother-baby bond, she thought about her own experiences growing up in Phoenix. Her mother, who is Native American and a member of the Gila River tribe, struggled with drug-and-alcohol addiction. For a time, the family lived in a warehouse without an oven or bath. Dass often took care of herself and her younger sister, Asacia, shopping for food and cooking their meals. “She basically raised me,” Asacia told me. Sometimes the sisters were sent to live with extended family or placed briefly in foster care, which Dass only vaguely recalls. As she got older, Dass started getting into trouble with the law. Those experiences left her with a lingering distrust of any adult in a position of authority: teachers, doctors, lawyers, social workers.

In that first team meeting, which took place by phone, Dass tried to paint a picture of herself and Bieniasz as responsible parents. Living at the campground while saving up for an RV was a conscious choice, she said – a short-term sacrifice that would give their daughter longer-term stability. Dass insisted that the baby was healthy and that she hadn’t witnessed any withdrawal symptoms. “People should not be shamed for being on Suboxone,” Dass argued, according to the DCS notes from the meeting.

But Pugliese, the DCS investigator, seemed unconvinced. If the parents were trying to save money, Dass remembers her asking, then why did she have a full set of manicured nails? (“They were press-ons from the dollar store,” Dass told me.) In her report to the court a few days later, Pugliese said the couple was suspected of using “illicit substances,” even though more tests, including one examining the baby’s meconium, or first bowel movement, confirmed the absence of any substances other than buprenorphine. Pugliese also indicated that Dass had no “protective capacities” and had failed to “set aside her own needs for her child.” The baby would be at serious risk of injury or death if she remained with her parents, she reiterated.

Jade Dass reaches out to pet her dog, Elgir, in Prescott Valley, Arizona. Credit: Ash Ponders for Reveal

A few days after the team meeting, the couple drove their new RV to court, confident that by demonstrating that they now had a place to live, the judge in their preliminary protective hearing would return their baby. But the judge said the only way they could reunite with their daughter was if they completed the case requirements and showed they could be “responsible adults.”

Dass was ordered to undergo a substance abuse assessment, individual counseling, parenting classes and a psychological consultation and to attend weekly sessions in family treatment court. She was required to sign over all of her medical, mental health and Suboxone treatment records, submit to eight to 10 random drug tests per month and resolve any open criminal cases – namely, several shoplifting and related charges from her earlier bout of homelessness and a probation violation from before she was pregnant. Bieniasz also had to complete anger management classes and, in an order that felt particularly cruel to the couple, to pay the state a monthly fee charged to parents of children in foster care. If they followed the rules, they could see their baby three times a week, but they would have to do so in DCS’ Yavapai County office.

The judge also ordered DCS to begin “concurrent planning.” In most states, including Arizona, caseworkers are required to plan for adoption as soon as a child enters foster care, even if parents are working to regain custody. The idea is to prevent a child from languishing without a permanent home. Several states, including Arizona, have faster timelines for infants. If Dass and Bieniasz did not show enough progress on their case plan, their parental rights could be permanently terminated after the baby turned 6 months old.

Dass couldn’t believe what she was hearing. To her, the judge was acting like her daughter’s removal was as routine as a car getting towed. “Like they were just taking your property away,” she told me.

Dass was fortunate in one respect: Unlike many states, Arizona provides low-income parents with lawyers to represent them in child welfare cases. Dass says the lawyer advised her that the fastest way to reunite with their daughter was to do whatever DCS said. She started researching the law herself, poring over the court documents, printing out statutes and studies, and reading late into the night. “Now I understand why lawyers get paid so much,” Dass told me. “It just kind of consumed me.”

What she learned only deepened her sense of injustice. According to state law, Arizona considers substance-exposed newborns to be the victims of neglect, except when the exposure is a result of a legal prescription. That’s me, she thought. She learned that under another statute, DCS could have opted to cover at least some of the cost of rent, to help keep the family together. But the agency had chosen to remove her daughter instead.

Then Dass stumbled across what she thought could be her lifeline: The federal Indian Child Welfare Act was passed in 1978 after researchers found that states were removing more than a quarter of all Native American children from their homes, with a vast majority going to non-Indigenous foster homes or institutions. The act requires agencies to make “active efforts” to keep the family together. A family’s poverty, lack of housing, drug abuse or “nonconforming social behavior” do not justify a removal. If foster care is deemed necessary, the state must try to place the child within the tribe. Dass asked the Gila River tribal authorities to intercede and waited for their response.

Despite consensus within the scientific and medical communities that Suboxone is safe, child protection authorities often disavow the drug, treating it like an illegal substance. In Arizona, it’s common for Department of Child Safety employees and even some medical professionals to view addiction treatment medications as “trading one drug for another,” says Lisa Grisham, the director of a hospital program for substance-exposed infants in Tucson. Rashidat Adegbenro, a former DCS investigator, told me that her training consisted of: “This is Suboxone. If you see it, it’s an opioid.” Many caseworkers also ignore the growing body of research showing that taking newborns away from their mothers often prolongs withdrawal symptoms. “It’s the biggest waste of resources ever,” says Lindsay Ridgell, a former DCS caseworker who lost her job in 2019 after she was investigated for using medical marijuana, which her doctor prescribed for her severe morning sickness. “Sexual abuse, trafficking, domestic violence – all that stuff is what we should be focused on,” she says.

Women across the country have described being pressured, even ordered, by caseworkers and judges to get off their medications to resolve their child welfare cases. In some instances, women who refused to do so lost their parental rights. The pressure extends to women who have been in long-term recovery, who own homes, hold jobs and successfully parent other children. “They treated me as if I was getting high,” says Kaysy Smith, a mother in North Carolina who had been sober for six years when her daughter’s birth in 2021 brought her to the attention of child welfare workers. Blair Morgan-Dota, a mother in Massachusetts, told me, “It was, ‘Once a junkie, always a junkie.’ ”

Caitlyn Carnahan was a star patient in her MAT program in Oklahoma City, where she attended regular 12-step meetings and passed every urine test. But when someone from the state’s Department of Human Services arrived to question her in 2019 as she tended to her newborn son in the NICU, Carnahan felt as if all of her accomplishments were erased. The investigator asked why she had used Subutex, a form of buprenorphine, during pregnancy if she knew it could cause withdrawal symptoms, Carnahan told me. The woman also brought up Carnahan’s husband’s extensive record, including three arrests stemming from domestic incidents from when he was still using opioids. She asked Carnahan why she would be with such a person. “I can see where she’s going with this, and it was just terrifying,” Carnahan says. “It was like a scary movie.” Her son was in foster care for eight months.

Carnahan’s doctor had warned her that the hospital might call authorities, but many other women are caught completely by surprise. “I never, not one time, thought about CPS coming to that hospital,” says G.W., who had a baby while taking Subutex in Louisiana in 2019. (G.W. asked to be identified by her initials to protect the privacy of her child.) After her son was removed, G.W. would constantly imagine where he was, what he was doing and mark another day without him on a calendar.

Her lawyer implored her to do whatever the social workers asked. “She would say: ‘Just keep your mouth shut. Just smile and let it go,’ ” G.W. told me. Caseworkers consider a parent’s cooperation a key factor in determining whether it’s safe to return a child to the home. Parents who aren’t compliant are often viewed as unstable or having poor judgment.

Once a case has been opened, social workers can investigate virtually every aspect of a mother’s life: her housekeeping practices, her income, her romantic partner, the contents of her refrigerator. In South Carolina, Mary DeLancy, whose newborn son was placed into foster care in 2017, recalled being proud to show a caseworker her new apartment, filled with baby toys and stuffed animals, blankets, a bassinet and a bouncy chair – a far cry from the homeless shelter she previously lived in. “It was a huge deal,” she said. “We had worked really hard to get to that point.” But when the caseworker arrived, she pointed out the crib, saying it was outdated and needed to be replaced immediately. DeLancy started to doubt herself. “The more a parent questions ‘Do I deserve my own child?’ the less they try,” she said. “Because they feel like no matter what they do, they’ll never be good enough.”

Blair Morgan-Dota was reported to the State of Massachusetts for child neglect after she gave birth while on Subutex, a medicine prescribed to counter addiction. Credit: Rania Matar for the New York Times

“They are making me feel I’m not a good enough mother.”

Blair Morgan-Dota

Even a parent whose newborn is not removed faces a level of surveillance that can be difficult to withstand. “She’s literally 24 hours old – how am I neglecting her?” Blair Morgan-Dota remembers thinking when she was reported for child neglect after giving birth on Subutex. At first, the Massachusetts caseworkers let her keep her baby, but when the stress of the case proved too much, and Morgan-Dota relapsed, the agency removed her daughter, and Morgan-Dota resigned herself to failure. “They are making me feel I’m not a good enough mother,” she said. “Maybe she’ll be better with someone else.”

Dr. Ruchi Fitzgerald, an addiction-medicine doctor in Chicago, says some of her postpartum patients never recover from a child removal. “I can’t tell you the number of times we try to reach these mothers after their child has been removed and we can’t find them,” she says. “They’re out there using again because they’ve lost hope.”

Morgan-Dota eventually regained custody of her baby, as did G.W., Carnahan and DeLancy. All are White and have a level of financial and social support that helped them overcome the requirements laid out by caseworkers. Carnahan and her husband own their own business. DeLancy is a stay-at-home mother whose partner has held the same job for a decade. By contrast, a 2021 study of prenatal exposure cases found that Black, Native American and mixed-race infants and toddlers were less likely to be returned to their families, even after parents found employment and housing and followed their case plans.

But for families who regain custody of their children, the road ahead can be challenging. Some are emotionally scarred by the separation. One woman told me that she can’t stand to hear the doorbell for fear it’s child protective services. DeLancy always vets her older daughter’s outfits, worried that her teachers might interpret a messy ensemble as neglect.

Though her son has no recollection of their separation, DeLancy says he doesn’t seem to be as connected to her as her other children – he never runs to her for comfort when he’s upset. “It’s almost like a part of that deep primal bond was damaged,” she says. The early months and years of life are key to developing healthy attachments between babies and their caregivers, and separation during this time can have long-term impacts on a child’s development. G.W.’s son was terrified to start day care and has refused to spend a single night apart from her. “My baby suffered,” G.W. says. “We suffered.”

Mary DeLancy with her three children at home in Ninety-Six, S.C., in June. Her newborn son was temporarily placed into foster care in 2017. Credit: Will Crooks for the New York Times

Dass and Bieniasz’s daughter turned 1 month old, then 2 months, then 3. They missed her first smile, the first time she made eye contact, the first time she rolled from her back to belly. Dass lived for her thrice-weekly visits, which were monitored by DCS, but they also reminded her of everything she was missing. Once, at the end of the visit, the baby began to cry, the DCS notes reported. “Ms. Dass picked baby girl back up and held her tight and told her that she loved her very much and that she didn’t abandon her,” the notes said.

Dass, meanwhile, filed motion after motion challenging DCS’ involvement in her case. Finally, about one month before her permanent custody hearing, the tribal court agreed to take over. But Tribal Social Services wasn’t willing to return the baby to Dass until she resolved her outstanding criminal charges. Instead, the agency granted custody to Bieniasz. Dass was prohibited from living with the two of them, which would effectively render her homeless. She also wasn’t allowed to spend any time with her daughter without supervision. (The Gila River Indian Community declined to comment on Dass’ case, citing confidentiality laws. “The Children’s Court strives to make decisions in the best interests of the children in every case,” a spokesperson said in a written statement.)

After weeks spent trying to comply with the tribe’s requirements, the hurdles became insurmountable. Dass didn’t have her own car, so she couldn’t get a job. Bieniasz needed to work to support the family, but the couple couldn’t afford child care on his restaurant paycheck. Dass wasn’t allowed to be alone with the baby, but her father was unavailable to supervise and her mother couldn’t pass the required background check. There was no one outside Dass’ family whom she felt comfortable caring for her daughter.

A photo of a herd of bison along a road, where the rearview mirror of the car is visible.
A photo of bison that Jade Dass took out her window. Credit: Courtesy of Jade Dass

So they made a decision that was fast and impulsive, one they would come to deeply regret. One afternoon in July 2021, the couple threw everything that would fit into their car, even grabbing the air-conditioning unit from the RV. “It was like we were being chased by a monster,” Dass told me. Then they strapped their daughter into her car seat and fled.

Dass and Bieniasz drove into the night, only stopping when they reached a campground outside Rock Springs, Wyoming. At first, Dass tried to pretend they were on a family road trip. They saw bison and antelope. They cooked BLTs on the camp stove and took walks at a nearby lake. At night, they opened the tent top and gazed up at a sky full of stars “lit up, like a glitter carpet,” Dass says. Wherever they went, people commented on how cute their daughter was. For the first time, people looked at Dass and saw a mother. “It was one of the best times of my life,” she says.

Bieniasz found a job as a farmhand near Martin, South Dakota, that paid about $2,000 a month and came with housing. But it was hard to shake the feeling that they had made a huge mistake. About a month after they fled, Dass saw the police checking out their house. That night, they packed up the car and started driving east. Around midnight at a Sam’s Club parking lot in Sioux City, Iowa, Dass awoke to light pouring in through the car window. Two sheriff’s deputies had pulled up behind them and were inching toward their car, guns drawn. They had used the couple’s cellphones to track them down.

“Let me see your hands,” a deputy screamed. “You do anything you’re not supposed to do, you’re going to be dealt with. You understand me?”

This is it, Dass thought. We did the best we could. She took the baby from Bieniasz’s lap, where she’d been sleeping, and held her close, thinking, I don’t know if I’m ever going to see you again.

YouTube video

In recent years, a handful of states have put in place safeguards to avoid punishing new mothers for using legal medications. Connecticut, for example, created an anonymous notification system in 2019 that allows the Department of Children and Families to collect data on substance-exposed newborns without prompting an automatic investigation. Health care providers can file a separate report if they are concerned about a baby’s safety, and the state’s online portal helps providers determine whether a report is warranted. “Our goal was to try to prevent unnecessary reports,” says Lisa Daymonde, who runs the child abuse reporting hotline.

Connecticut has also funneled resources into training addiction treatment providers on how to establish plans of safe care and fund peer coordinators who help families prepare for the arrival of a baby. A woman in a state-funded treatment program is typically placed on a care plan early in her pregnancy, giving her time to find housing, a job and any necessities she might need, like furniture or diapers. When she’s ready to give birth, she provides the hospital with a copy of the plan, forestalling the need for DCF intervention. (If a woman doesn’t have a plan of safe care, which is common at programs not paid by the state, she can be reported to child welfare authorities.)

But many states, including Arizona, continue to route cases of substance-exposed newborns through the same system used for reporting child abuse and neglect. “We should not be waiting until there’s a crisis at birth to say, ‘Oh, my gosh, this baby needs services, this parent needs services,’ ” says Nancy Young, whose national nonprofit, Children and Family Futures, receives federal funding to advise child welfare agencies on how to implement the notification requirements. Young has seen those efforts undermined by state laws, dating back to the crack era, that continue to treat any prenatal substance exposure as child abuse or neglect. “If I could change anything, I would change all of those states’ statutes,” Young says. “It does not help.”

“We’re presuming neglect before a baby’s even born, and it’s really problematic.”

Dr. Stephen Patrick, neonatologist

Dr. Stephen Patrick, a Vanderbilt University neonatologist who has treated hundreds of substance-exposed babies and supported the federal law, CARA, now believes that removing the word “illegal” – with states taking such a punitive approach – was wrong. “We’re presuming neglect before a baby’s even born, and it’s really problematic,” he says.

“The policy doesn’t work,” says Cathleen Palm, a child welfare advocate in Pennsylvania who was an early CARA backer. Rather than helping families get services, Palm says, her state’s implementation of the law has left some women so fearful that they avoid doctors and hospitals. Palm now believes the responsibility for helping substance-exposed babies and their mothers should be taken out of the child welfare system entirely. “It’s frustrating to be where we are,” she says. “It’s heartbreaking.”

In 2021, Celia Sims, a senior policy adviser to Richard Burr, then a U.S. senator from North Carolina, helped spearhead a reform effort that would have encouraged states to deploy agencies outside child protective services to respond to referrals. But support for the legislation fell apart when a handful of Republicans began demanding that the bill include protections for parents who refuse to provide their children with gender-affirming care.

Sims now believes that public health agencies should be responsible for helping substance-exposed newborns and their families. “This isn’t about child abuse,” she says. “If mom can get it together and stay clean and we can keep that child with her, that is a far better experience for everyone than bringing a child into the system.”

After her arrest in September 2021, Dass spent almost two months in jail on a charge of child endangerment, initially unsure of what had happened to her daughter or to Bieniasz. The deputy sheriff’s report contained errors, including that Dass’ child was born “addicted to heroin.” He also noted the state of the car – describing a “pungent odor” and a large brown stain on the back seat – and expressed concern about the baby’s cries after she was taken from her mother. “It was a scream like I’ve never witnessed before,” the report read. “Being a father of two, this cry to me did not seem like a normal hungry, tired, that type of a cry; it seemed as if there was something wrong with this child … the baby was in some sort of pain.”

Dass pleaded guilty and was released on probation. She reunited with Bieniasz in Colorado, where he was working and saving money. Their daughter was back in foster care.

Dass feared that their parental rights would be immediately terminated. She was relieved when Tribal Social Services agreed to give them a second chance, imposing a case plan similar to the one that Arizona DCS had ordered, including random drug screenings, counseling, mental health or drug treatment, and parenting classes. The new plan only allowed twice-monthly monitored visits. Dass also had to resolve all her pending criminal matters and fines, including probation following her arrest in Iowa. This time, she was determined to follow every rule. “We just want to be amicable with them and do what they ask of us,” she told me.

In December 2021, Dass and Bieniasz met their daughter for the first time in person in over three months, monitored by a tribal caseworker at a Phoenix public library. When the child first saw her parents, she looked startled and confused. She was now 10 months old and standing on her own. She wore clothes Dass had never seen before and a backpack stuffed with toys her parents didn’t recognize. When Dass went to the bathroom to change the baby’s diaper, the caseworker followed her inside.

“We just got to take it one step at a time,” Dass told me later that day. “My main thing is that, for her peace of mind, just to know that we didn’t just disappear and are never going to see her again. I don’t know what her little baby mind thinks about all of this. I just hope she doesn’t feel abandoned.”

As Dass and Bieniasz started making progress on the case plan, they tried to develop a relationship with their daughter. On her 1st birthday, they took her to the aquarium, where they ate ice cream and gave her a singing teddy bear. Dass found a job working at a restaurant, then she started working for her father, who owns a business selling novelty items to convenience stores.

But every victory came with a setback. A boss shorted her on pay, she says. Dass managed to get one of her shoplifting charges dropped but then discovered that by returning home to Arizona, she had violated the terms of her probation in Iowa. A counselor determined that Dass didn’t need behavioral health services, but according to Dass, the tribal caseworker told her she had to attend counseling anyway. The plumbing in the trailer that she and Bieniasz were renting stopped working. The car she was borrowing broke down.

Their daughter started walking, then running, then talking. She began losing her baby fat. Soon her hair was long enough to pull into pigtails. Dass looked forward to the visits but dreaded seeing her child grow up without her. She and Bieniasz hated the feeling of being watched by the caseworker, every new parental failure cataloged in reports to the court: the time Dass forgot to change a diaper, the time they gave her a lollipop for the car ride home, “a choking hazard,” the caseworker wrote. Demoralized, Dass decided to stop reading the reports altogether.

“All my life, I really looked forward to being a mother. And I feel like I’m having that basic human experience taken from me.”

Jade Dass

As the months passed, their daughter began to find the visits with her parents upsetting. According to court reports, she seemed happy at her foster home. Instead of greeting her parents with excitement, she would cry. “It’s just really hard,” Dass told me in late 2022. “I’m just trying to do the best I can. She’s my firstborn daughter and we don’t even know each other. And it really hurts.” The stress took its toll on her relationship with Bieniasz. In July 2022, Dass moved in with her sister. She eventually slipped into depression, some days sleeping almost around the clock. “All my life, I really looked forward to being a mother,” she told me. “And I feel like I’m having that basic human experience taken from me.”

Dass still blamed Arizona DCS for choosing to remove her daughter and labeling her a bad mother before she ever had the chance to be a parent. But now she also started to blame herself. “I made mistakes,” Dass told me. “Like I shouldn’t have taken Suboxone when I was pregnant with her. I should have been more considerate of her.”

This January, weeks before the baby’s 2nd birthday, the tribal agency signaled that it was losing patience. Dass had yet to complete her parenting classes and counseling and still had unresolved criminal cases. “This case manager is concerned about the lack of progress the parents have made in the last 2 years and the amount of time their daughter has been in care,” the caseworker wrote.

Dass tried to push herself forward. In March, she went to court in Phoenix to resolve a probation violation for a misdemeanor trespassing case from 2019 when she was still abusing opioids. She thought the hearing was just a formality, that she would continue on probation. After all, she hadn’t used fentanyl in years. Instead, the judge sentenced her to six months in jail. Dass would not be able to work on her case plan. She would miss the next court hearing, when a judge would most likely decide her child’s fate.

In mid-March, Dass’ father called her at the Maricopa County Jail. He’d spoken with the caseworker. Dass was losing her rights to her daughter, he said. Under tribal law, Dass could still petition the court for reunification, but the news left her distraught.

Later that week, she visited a jail doctor, an older woman, who asked her if she had kids.

“I have one,” Dass said. “But she’s in foster care.”

“Are you sad about it?” the woman asked.

“Yeah,” Dass said. And then she began to cry.

This story was edited by Nina Martin of Reveal and Raha Naddaf of The New York Times Magazine. Decca Muldowney contributed research. Dara Gray and Shawn Musgrave provided legal support.

Shoshana Walter can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter: @shoeshine.

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