Legal marijuana possession = child abuse?

Today’s New York Times contains an article about state child welfare investigations of parents who legally possess marijuana:

The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.

The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.

Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.

“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”

Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.

New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.

Is this good case work or child protection overkill?

Now consider this. Yesterday, the Ninth Circuit Court of Appeals decided in Dougherty v. City of Covina that a warrant to search a suspected child molester’s computer was illegal when the only evidence linking the suspect to possession of child pornography was the experience of the requesting police officer.

In other words, while NYC caseworkers have lawful authority to remove kids from parents who possess legal amounts of marijuana based solely on their training and experience, law enforcement officials cannot search the computers of suspected child molesters based solely on their training and experience.

Should child welfare case workers be governed by the same Fourth Amendment constraints as law enforcement officers? Should a case worker be allowed to search the computers of suspected child sex abusers without a warrant? Is searching a computer any different from searching a refrigerator and finding a small amount of marijuana?

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