Should mothers of opioid-positive babies be reported to law enforcement? New bill would leave that to DCFS

McHenry County state’s attorney objects, citing DCFS failures. Proponents proposed law would keep families together

Prayer cards for AJ Freund, 5, sit on a table next to the visitor guestbook May 3, 2019, at Davenport Funeral Home in Crystal Lake.

A proposed state law could mean that parents of babies born opioid-positive are not immediately reported to county state’s attorney’s offices. Instead, the decision to alert law enforcement would be discretionary and based on investigations by the Department of Children and Family Services.

Senate Bill 3136 has passed through the state Senate and awaits a final vote in the House before next week’s deadline of the General Assembly’s spring session. It would take effect Jan. 1.

Proponents have said the new law would help keep moms struggling with addiction alive and keep families together.

But McHenry County State’s Attorney Patrick Kenneally strongly opposes the bill, saying in a recent news release that it “makes our knowledge of a drug-positive infant contingent upon DCFS, which, if past experience is any guide, will notify an SAO only in rare circumstances.”

McHenry County State's Attorney Patrick Keneally talks about how cashless bail is going to be implemented. Kenneally spoke during a McHenry County Bar Association meeting entitled "Pretrial and Fairness and Safe-T: Navigating the Elimination of Cash Bail and Related Items" on Tuesday Aug. 29, at the McHenry Count Sheriff's Office.

The proposed change would mean that, should a baby be born opioid-positive, rather than reporting the mother to the state’s attorney’s office, DCFS would first conduct an investigation and then make that determination, said Charles Golbert, the Cook County public guardian.

The new law would quash “a provision requiring [DCFS] to report to the state’s attorney every report of a newborn whose blood, urine or meconium contains a prohibited controlled substance,” according to the proposed bill.

The goal of the bill, Golbert said, is that “families that can safely be kept together will be kept together, and cases appropriate for criminal prosecution will continue to be. ... Sometimes in addressing issues like drug abuse and child protection, there is a pendulum that swings back and forth, and sometimes the pendulum over-swings. In this case, the current law is an overreaction to concerns about drug use and its harms to kids.”

But Kenneally, in noting blunders in DCFS judgment calls, referred to the 2019 death of Andrew “AJ” Freund of Crystal Lake, who was born to JoAnn Cunningham with heroin in his system. He was removed from Cunningham for the first 18 months of his life while she went through treatment.

Cunningham continued to use drugs after AJ was returned to her care, according to police and DCFS reports, and when AJ was 5, she beat him to death.

Kenneally said the “only reason” AJ lived until he was 5 was because the state’s attorney’s office was notified when he was born that he had heroin in his system. The state intervened, and although she relapsed, AJ was placed in protective care and she got treatment.

The bill, supported by many in the medical community, would create the Family Recovery Plans Implementation Task Force Act. The bill states its intent is “to require a coordinated, public health and service-integrated response by various agencies within [DCFS] to address the substance use treatment needs of infants born with prenatal substance exposure, as well as the treatment needs of their caregivers and families, by requiring the development, provision and monitoring of family recovery plans.”

Golbert said he is “sympathetic” to Kenneally’s argument regarding DCFS’s “track record,” but said the answer is not to enact a one-step-fits-all approach and subject every parent to criminal prosecution.

“I believe there is a reason to be cautiously optimistic [about DCFS]. There is a new director who has a very good reputation as being reform-minded and an excellent manager,” Golbert said.

Kelly Hubbard, director of policy and advocacy at EverThrive Illinois, said the proposed bill puts Illinois in line with federal guidelines. It would require DCFS to complete its investigation before a positive toxicology report being sent to the state’s attorney’s office. A positive toxicology report, which under the current law is immediately sent to the state’s attorney’s office, does not factor in all circumstances, such as a mother being given prescriptions during pregnancy or delivery, Hubbard said.

“Federal standards say you cannot treat [all newborn opioid-positive] cases as child abuse and neglect,” Hubbard said. “Illinois is currently treating all of this the same, whether you burn your kid or break his arm or have an opioid-positive newborn. Federal guidelines say it has to be separate. It should still be reported, but not automatically.”

A toxicology report should never be acted on immediately, she said, because a toxicology report alone does not provide all the details. If one is being considered “without a DCFS investigation, it’s an issue.”

DCFS investigation would include a safety plan involving other family members and a behavioral health care plan for the mother.

“The toxicology report on its own means nothing if you don’t know if mother was given a painkiller in pregnancy and delivery. [Without that information,] then how do you know if that is abuse and neglect?” Hubbard said.

For women who are pregnant and struggling with addiction, the current law keeps them from getting proper prenatal care.

“We found out women were too afraid to go to their providers, afraid of DCFS and the state’s attorney’s office, [and] they are not getting prenatal care, not divulging they have issues so they are not getting substance use disorder treatment ... and they are dying,” Hubbard said. “We are seeing more women die from substance use disorder than anything else, and not so much babies [who then] go into a broken system.”

It is better for a baby to stay with their mother “who can be treated and rehabilitated,” Hubbard said. Should a baby be born opioid-positive and be allowed to go home, Hubbard said that’s not going to happen “without a whole bunch of people being involved.”

The goal is to ensure mom and baby stay together and are both safe.

“We have to keep mom and baby together for both of them to be successful,” Hubbard said. “Every death in Illinois from substance use disorder could have been prevented if we had the right plan and system, which is what this bill would do.”

Still, Kenneally said he has his doubts. He questioned how a pregnant mother can ingest cocaine, heroin and meth and have that not be considered abuse or neglect. He noted one case where, within seven years, a mother gave birth to three babies who had illicit drugs in their systems. DCFS was involved, and she did not participate in recommended treatments. She picked up new felonies while one baby still was in the hospital detoxing – “it was so significant the baby required morphine assistance to help the baby through that withdrawal,” he said. The father also faced multiple drug charges in various counties, Kenneally said.

The only reason the state’s attorney’s office was aware of that case is because it immediately had a toxicology report. The new law would prevent that, Kenneally said.

“Now those toxicology reports will go straight to DCFS,” he said, “and they cannot be relied upon.”

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