It depends. A lot is unclear about when and how the County gets notified and involved when a parent with CPS history gives birth, but we do know that there are so-called “flags” or “red letters” that may lead a medical provider to make a report to the County prior to or at the time of the birth. These include: 

• Having children in the foster system;

• Having an open case with the County; 

• Having prior County history, including prior terminations of parental rights;  

• Not getting prenatal care. 

Sometimes, the County asks local hospitals to contact them at the time of birth due to one of these “flags.” Sometimes the hospital staff contacts the County on its own.

Advocacy Tips!

• Identify midwives, doctors, hospitals, birth centers, etc. that you trust. If you’re not sure who to trust, connect with Elephant Circle (legal@elephantcircle.org) for a referral.

• If you have prior terminations of parental rights, or an open or past County case with an older child, it can be strategic to:

  • Seek care at hospitals that are unaware of past system involvement & do not disclose current or past CPS involvement. 

  • Avoid sharing about your pregnancy with the County caseworkers, as much as possible. If the County caseworker knows you are pregnant, only share information you want to share about your pregnancy and you think could reduce further County involvement. 

• Bring a support person–like a doula, family member, community member, friend, neighbor or others–to your medical appointments before birth (prenatal care), during birth (labor and delivery), and after birth (postpartum care). Doctors may make a report to the County if they don’t believe you have the support you need to parent, so making sure they know you have support can reduce the risk of a report. 

  • Discuss with your support person(s) what they should do to support you if CPS is called. 

  • Discuss with your support person(s) the kind of emotional support and advocacy you want if you are unable to advocate for yourself.

  • If you do not know a trusted support person, reach out to Elephant Circle.  

• Only share information you want to share with medical providers–be mindful how that information might be used, and try not to lie. You do not need to disclose substance use to a provider, but if they get a positive test after you said you don’t use substances it could be held against you by the County.

• Keep a record! Take notes, including names of providers, keep track of dates and ask for copies of your medical records, including provider notes.  You can also request your medical records at discharge, or afterwards, and sign up for electronic access to your medical records (often called “mycharts”). Or better yet, ask your support person to do all of this! 

• If the County shows up to your hospital room or is involved, remember you have rights and keep a record! Get the County workers’ names, phone numbers, and supervisors. Take notes of all conversations, and ask for copies of all documents the County caseworker gives you and/or asks you to sign.Or better yet, ask your support person to do all of this! 

No. Drug testing is not legally required for the pregnant or birthing person or the newborn simply because they are seeking prenatal and or labor & delivery care. 

The short answer is no… but sometimes it happens anyway. This can be due to individual or hospital-level biases, misunderstanding of the law, or other factors. Unless there is a medical emergency where you are unable to answer questions, Colorado policy is that drug testing should never come before drug screening. If a medical provider has concerns around substance use, the first step for them is to do a drug screening. 

Drug “Screening” is different from “testing.” Drug screening is the process of gathering more information from patients about their substance use through asking you a standard set of questions. If your answers to those questions  indicate the “need” for a drug test, then providers should ask for and get informed consent before drug testing you. 

Check out this list outlining other factors (aka  “indications”) that may lead a medical provider to drug test you or your newborn.

There are many different types of drug tests (aka “toxicology test”) some of which can be  performed on your newborn, including: 

• Urine drug test (most common in birth care setting) 

• Oral fluid drug test 

• Blood test 

• Hair follicle test 

• Newborn urine drug tests 

• Newborn Meconium (aka a newborn’s first poop) drug test 

• Newborn umbilical cord drug test 

These tests vary by their accuracy and the window within which they can detect the presence of substances in your body. 

Be aware! Doctors may be more inclined to test your newborn if you don’t consent to a drug test on yourself during pregnancy.

Advocacy Tips! 

• Where you seek care matters! Some providers and facilities will be more or less inclined to pressure you to participate in drug testing. For more information about trusted providers in Colorado, reach out to Elephant Circle (legal@elephantcircle.org)!

• Admitting to using drugs or actively seeking help for drug use could result in a D&N case. For this reason, it is valuable and strategic to seek out support from trusted providers and organizations that understand the harm of family separation.

• You do not need to disclose substance use to a provider, but if they get a positive test after you said you don’t use substances it could be held against you. 

• If medical providers ask you to take a drug test, ask why they are requesting it. 

  • Colorado guidelines suggest drug  testing is only needed when it would impact medical treatment, and these tests usually don’t do that. 

  • Consider sharing a copy of these guidelines with your provider if they don’t know about them and ask how the test results would or would not impact our or your baby’s medical treatment. 

  •  If you have the opportunity during your prenatal care, ask about the different types of tests the provider might use and ask that all types of test including drug test/screens be done only after you have given written and verbal, voluntary consent.  Ask that your request be documented in your chart, and that hospital providers record the medical reason for tests.  

  • Also consider reaching out to a trusted harm reduction organization in your community about the medical utility or alternative options to support your family that do not rely on drug testing. 

  • Consider calling the place you intend to give birth and asking them about their drug testing policies and protocols during labor, birth, and early postpartum. 

  • For more information on this front, reach out to Elephant Circle (legal@elephantcircle.org) 

• If a medical provider tells you they are going to drug test your newborn, ask:

  •  which kind of test;

  •  the medical reason for the test; and

  •  how the test will impact your baby’s medical treatment.

Maybe. Medical providers–including doctors, nurses, and social workers–are mandated reporters, meaning they are legally required to report what they think is  child abuse or neglect to the County. Even though providers are not legally required to make a report solely because  of a positive drug test, many will do so anyway because of bias, hospital policies that misinterpret Colorado law, and other factors. 

Advocacy Tips! 

• Where you seek care matters! Some providers and facilities will be more or less inclined to report you to the County or pressure you to participate in drug testing. For more information on safer providers, reach out to Elephant Circle  (legal@elephantcircle.org)!

• Make sure your providers know you have support! Sometimes a decision to make a report or not can be rooted in a provider’s (often, if not always, biased) perception on whether the pregnant person has the support they need to parent. Making sure providers know you have support –  whether through a doula, family members, community members, friends, neighbors or others – can reduce the risk of a report being made. Also, It can be strategic to bring someone to your perinatal care visits for this reason.

Maybe. Medical providers–including doctors, nurses, and social workers–are mandated reporters, meaning they are legally required to report what they think is perceive to be child abuse or neglect to the County. Even though providers are not legally required to make a report solely because your baby tests positive, many will do so anyway because of bias, hospital policies that misinterpret Colorado law, and other factors. 

It is important to note that Colorado does have a process in place for tracking newborns without making a report - this process is not perfect but is preferable to a report. As noted above, Colorado courts have interpreted child abuse and neglect to include a newborn merely testing positive for a substance at birth.

Advocacy Tips! 

• Where you seek care matters! Some providers and facilities will be more or less inclined to report you to the County or pressure you to participate in drug testing for your baby. For more information about safer providers, reach out to Elephant Circle  (legal@elephantcircle.org)!

• Make sure your providers know you have support! Sometimes a decision to make a report or not can be rooted in a provider’s (often, if not always, biased) perception on whether the pregnant person has the support they need to parent. Making sure providers know you have support –  whether through a doula, family members, community members, friends, neighbors or others – can reduce the risk of a report being made. Also, It can be strategic to bring someone to your perinatal care visits for this reason.

A plan of safe care is a tool to document the referrals to and delivery of services for infants  “identified as being affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure, or Fetal Alcohol Spectrum Disorder.” 

The law does not require all families who have experienced substance use during pregnancy to have plans of safe care, but the reality is that your healthcare provider and/or the County may talk to you about developing a plan of safe care anyway.  

Check out Colorado’s Plan of Safe Care form here. 

Some Important Things to Know About Plans of Safe Care:

• Plans of safe care do not require a call to the County, and in fact, they do not need to involve the County at all. Colorado indicates that the purpose of plans of safe care are to: (1) ensure the parents and infant remain safe and healthy; (2) work with the family to identify health and substance use treatment needs; (3) connect the family to resources in the community; and (4) improv[e] care coordination across systems.” 

• Plans of safe care should be collaborative and include you in their creation. The purpose of plans of safe care are 

  • (1) to meet  the health, safety, and well-being of an infant with prenatal substance exposure, following their release from the hospital; and 

  • (2) address the health, support, and substance use treatment needs of the family or caregiver(s). 

• Plans of safe care can be created during pregnancy, prior to any County involvement. 

• If the County becomes involved with your family, plans of safe care can be used as advocacy tools to show that you have strategies and supports in place to safely care for your baby.