Avery Barnes*, an Indigenous woman living in New Hanover County, didn’t have an easy pregnancy. She spent the better part of nine months uncomfortable and in pain, and as time went on, she could barely sleep.
So when a loved one suggested that a natural, hemp-based product called Delta-8 might help alleviate some of Barnes’ discomfort – and help her sleep – she was all for it. Her sister picked up a couple gummies from the store, and she tried it. Miraculously, it worked.
“I had been having a hard time sleeping for weeks. I wouldn’t get more than a few hours a night and it was really getting to me. Delta-8 seemed like a good work around for a temporary problem. It helped me finally get the rest I needed!”
Barnes thought she’d found her solution. She had no idea that a few weeks later, the day after she gave birth, a social worker would be at her bedside informing her that she would be subject to an investigation by Child Protective Services (CPS).
Unbeknownst to Barnes, a urine sample she provided at the hospital – under the premise that it would be used solely to test for infections – had been tested for THC. Because there was Delta-8 – a product legally bought and consumed in North Carolina with traces of THC in it – in her system, the results came back positive. Tests on Barnes’ newborn’s stool also came back showing traces of THC in his system. Someone on Barnes’ team reported this to the hospital social worker who opened an investigation with the Department of Social Services (DSS).
Barnes was horrified. She had hoped for a peaceful time of recovery and bonding with her newborn after giving birth. Instead, she was subject to a six-week investigation by DSS for consuming a legal substance.
At first I tried to figure out when I was drug tested? I remember the nurses asking for a routine urine sample after I gave birth to “check for infections”. Then less than 24 hours later a social worker from the hospital was in my hospital room berating me with questions after my family had gone home to rest. I felt cornered and scared. She let me know a social worker would be doing a home visit after I was released from the hospital. I felt humiliated and triggered because I’m a foster care survivor. I was afraid they were coming for my kids.
As it turns out, it’s very difficult and expensive to run tests that can distinguish between THC from Delta-8 and THC from marijuana, which is still illegal in North Carolina. The State Crime Lab doesn’t even have the capacity to do this test, which is one of many reasons why State Attorney General Josh Stein has emphasized decriminalization and has stopped prosecuting marijuana cases.
This left Barnes to wonder: Why had the traces of THC in her system triggered a CPS investigation? And how could hospital staff test Barnes’ urine for THC without her consent or knowledge?
We spoke to Jaelyn Miller – attorney and manager of the Don’t Plead to Weed Campaign at Emancipate North Carolina, an organization dedicated to ending structural racism and mass incarceration in our state – to get a better understanding of a mother’s right in this situation.
“I think it’s pretty widely known that you can’t drug test a mother without her consent,” Miller said. “If [Barnes] did not consent, that was an illegal test.”
Miller says every patient has the right to know what tests are being conducted in a healthcare setting and the reasoning for these tests. It can be difficult during times of extreme stress, such as childbirth, but patients can always say no to testing. Miller says it can also be helpful to have a patient advocate, like a doula, midwife, or attorney in the room or on call during hospital visits and other healthcare interactions. She cautions that the designated advocate should be someone who the patient knows personally and who isn’t employed by the hospital.
“What is legal and what is done in practicality are often different… Even if legally they’re not allowed to do it, they’ll still do it.” Miller said. “If it’s a public hospital, the only way to vindicate the rights is to sue them. But a lot of times people don’t sue because they don’t have the means.”
Outside of the hospital, Miller says that parents visited by social workers do not have to let anyone in who doesn’t have a court order. Parents in this situation also don’t need to answer any of the social worker’s questions, and would caution not to without an attorney present.
Miller also says that a lot of North Carolinians don’t understand their rights when it comes to marijuana-related accusations and charges. With recent changes to state law, possession of under half an ounce of illegal marijuana has become a misdemeanor. However, when accused of a misdemeanor, those charged are not provided with a court appointed lawyer. This leaves a significant gap of North Carolinians with drug charges who don’t have access to a lawyer and don’t know their rights. According to Miller, without legal assistance, innocent North Carolinians charged with a marijuana-related drug charges end up pleading guilty just to resolve the case – even when there is not sufficient evidence to support their charge.
This gap in resources is especially crucial to address among Black and Brown communities to mitigate the crisis of the mass incarceration of people of color. In a statement from the North Carolina Task Force for Racial Equity in Criminal Justice, Justice Anita Earls said, “Data made available to the Task Force shows that 63 percent of the more than 10,000 convictions for simple possession of marijuana last year in North Carolina are people of color even though they are only 30 percent of the population and research documents that marijuana use is at roughly equal percentages among Black and white populations.”
“The smell of marijuana is an excuse officers use to harass people of color,” Miller said. That’s why Emancipate NC just launched “Don’t Plead to Weed,” a campaign to educate North Carolinians about their rights regarding cannabis possession and use.
Because legal hemp and illegal cannabis smell, burn, and look the same, the campaign directs those accused of a marijuana-related crime to not plead to the crime. The idea is that when law enforcement and prosecutors realize that they need to pay a private lab to conduct an expensive test to prove beyond a reasonable doubt that the THC in a suspect’s system is from an illegal source, the cost will discourage district attorneys from pursuing petty drug charges.
“The war on drugs sucks up so many resources when there are real crimes out there that need to be solved,” Miller said. “I think the majority of America feels that way as well. They recognize that’s not a good use of taxpayer resources.”
As for Barnes, she’s glad she had support when the social worker showed up at her hospital bed. She had designated her sister as her patient advocate in advance, and Barnes’ sister had researched possible scenarios and patients’ rights. Barnes’ sister made sure Barnes knew that she did not have to answer any of the social worker’s questions and that she could opt out of any tests she did not want performed.
Barnes worries about other mothers, especially those who don’t have an advocate looking out for them. “I can’t believe that even with all the support I had, my urine was still tested for drugs without my consent. I hope other new moms never have to have that experience, but if they do, I hope they know their rights. In the end my case was closed after six weeks because I had a family member that knew the law and advocated for me. I want every mother going through this to have an advocate like that. ”
Barnes is relieved to say that her case with CPS is closed and she’s had time to rest and recover from childbirth. Right now, she’s focusing on bonding with her new baby and healing the anxiety this situation brought up for her.
Nothing scares you like the threat of having your child taken away,” Barnes said. “Especially since I was taken from my mom when I was three years old all because there were no resources for my mom who had a diagnosed mental illness and was a domestic violence survivor. I’m glad this investigation didn’t go any farther than it did. If you’re in this situation, a social worker does not have the authority to enter your home without a signed court order, no matter how many times they ask or if they bring a police officer with them. Do not be intimidated. No matter how many times the social worker asks you to take a drug test, you are not obligated to take one, even under threats from DSS. Why did I say no to a drug test? I had already used Delta-8, which will show up as THC. I felt taking a drug test was a set up to take my kids or prolong the investigation
You can find more information about Emancipate NC at https://emancipatenc.org/.
To donate to Emancipate go to https://emancipatenc.org/donate/.
*name changed to respect source’s anonymity