The Colorado Children’s Code defines abuse and neglect for the purposes of reports and findings at Colorado Revised Statutes 19-1-103 and 19-3-102 respectively. The definition of abuse and neglect that occurs at 19-1-103 (VII) and 19-3-102(1)(g) means that if a baby tests positive for one of these substances at birth that baby is abused and neglected regardless of the health of that child or the care of their parent:
Any case in which a child tests positive at birth for either a schedule I controlled substance, as defined in section 18-18-203, C.R.S., or a schedule II controlled substance, as defined in section 18-18-204, C.R.S., unless the child tests positive for a schedule II controlled substance as a result of the mother's lawful intake of such substance as prescribed.
A child can also be adjudicated as “neglected or dependent” under 19-3-102(c) if “the child’s environment is injurious to his or her welfare,” this is the provision that is often used to establish abuse and neglect related to substance use, including non-scheduled substances like alcohol, or post-birth exposure as through breastfeeding
Pregnant people in Colorado are protected from the use of drug and alcohol screenings done during prenatal care in criminal proceedings under Colorado Revised Statute 13-25-136, which states:
A court shall not admit in a criminal proceeding information relating to substance use not otherwise required to be reported pursuant to section 19-3-304, C.R.S., obtained as part of a screening or test performed to determine pregnancy or to provide prenatal care for a pregnant woman. This section shall not be interpreted to prohibit prosecution of any claim or action related to such substance use based on evidence obtained through methods other than the screening or testing described in this section.
But this protection does not extend to child welfare or custody matters, it doesn’t prohibit the use of evidence to prosecute a pregnant person for substance use if the evidence was obtained by other means, and it doesn’t address breastfeeding.
Breastfeeding in Colorado is protected by Colorado Revised Statute 25-6-302, which provides that, “A mother may breast-feed in any place she has a right to be,” but I am not aware of this law being used to protect a breastfeeding parent in a child welfare or criminal case. The Workplace Accommodations for Nursing Mothers Act, Colorado Revised Statutes 8-13.5-101-105 established standards for employers, but does not extend breastfeeding protection or accommodation beyond the employment context.
Further, the Children’s Code at section 19-3-304 requires that certain people including doctors and nurses report suspected abuse or neglect:
(1) (a) Except as otherwise provided by section 19-3-307, section 25-1-122 (4) (d), C.R.S., and paragraph (b) of this subsection (1), any person specified in subsection (2) of this section who has reasonable cause to know or suspect that a child has been subjected to abuse or neglect or who has observed the child being subjected to circumstances or conditions that would reasonably result in abuse or neglect shall immediately upon receiving such information report or cause a report to be made of such fact to the county department, the local law enforcement agency, or through the child abuse reporting hotline system as set forth in section 26-5-111, C.R.S.
Since “circumstances or conditions that would reasonably result in abuse or neglect” under the definition of 19-1-103 (VII) and 19-3-102(1)(g) include a pregnant person’s substance use, health care providers are often in the position of providing care and participating in investigation of pregnant people.
Providers are not obligated by law to tell their patients when they are simultaneously providing care and participating in an investigation. Ethical guidelines provided by the American Medical Association (which clearly prioritize the clinical relationship and constrain the amount providers must share with authorities) have so far been insufficient to clarify or establish patient protection. AMA Code of Medical Ethics Opinion 2.02 – Physicians’ Obligations in Preventing, Identifying, and Treating Violence and Abuse states:
…physicians should only disclose minimal information in order to safeguard patients’ privacy. Moreover, if available evidence suggests that mandatory reporting requirements are not in the best interests of patients, physicians should advocate for changes in such laws.
Federal legislation establishes data collection, standards and reporting requirements related to funds for child welfare services, through the Child Abuse Prevention and Treatment Act known as CAPTA (42 US Code 67), and the Comprehensive Addition and Recovery Act of 2016 known as CARA (42 US Code 67, Subchapter 1).
CAPTA is clear that the federal government wants to know about and track infants affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure or a Fetal Alcohol Spectrum Disorder. CAPTA also wants health care providers to report such cases but, “such notification shall not be construed to— (I) establish a definition under Federal law of what constitutes child abuse or neglect; or (II) require prosecution for any illegal action.”
CARA replaces the term “illegal substance use” with “substance use,” to account for things like alcohol and wants states to have substance use disorder treatment available not just for infants but also their family.
Federal statutes establish a baseline for states. The federal parameters do not exceed those established under Colorado law. Currently, legislative and regulatory efforts are underway to ensure Colorado meets the federal requirements, to better collect data about substance use in child welfare cases in Colorado, and to refine the definition of abuse and neglect as it relates to babies who may have been exposed to substances in utero.
Other states vary, but will also meet federal requirements, and will have many of the same components described above, with laws related to pregnancy and substance use including criminal, civil child welfare, custody, and mandatory reporting.