If you are pregnant or just had a baby and you’ve been using substances—whether alcohol, other drugs, or prescription medications, you may feel scared and wonder: “Will my baby be taken away if I’m drinking?” “What if I tell my doctor or another healthcare provider that I’ve been using drugs?” “Or what if I test positive for marijuana?” These are common and serious concerns. The truth is: it depends on where you live, your situation, and whether you are getting help.
It’s important to know that in some states the use of substances during pregnancy is considered child abuse. Further, substance use is the most common reason for reporting to Child Protective Services (CPS).
Every State Is Different
Child Protective Services rules are different in every state. Some states require doctors or hospitals to report any positive drug test during pregnancy or at birth. In other states, it depends on whether the substance use is harming the baby or if there are signs of neglect. Neglect can include lack of enough food, housing, clothing and healthcare as well as ignoring the baby or not providing enough stimulation. 1
For example, as of June 2024: 2
Prenatal substance use is considered child abuse or neglect in 24 states: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin, plus the District of Columbia.
Substance use alone is not considered child abuse or neglect – more information is needed to determine in 14 states: California, Delaware, Kentucky, Maine, Maryland, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania, and Wyoming.
12 states do not include substance use during pregnancy in their child abuse or neglect laws: Alaska, Connecticut, Hawaii, Idaho, Mississippi, Nebraska, New York, North Carolina, Rhode Island, Vermont, Washington, and West Virginia, plus Guam, Puerto Rico, and the U.S. Virgin Islands.
It’s important to know that regardless of a state’s laws, every person has the right to a fair legal process and the right to not speak to police officers.
What Happens If a Drug Test Is Positive at Birth?
If your lab work or your baby’s test comes back positive for substances, the hospital might contact CPS or the child welfare agency. CPS is responsible for ensuring the baby is safe. They may investigate and determine that there is no problem. In other cases, they may remove the baby from the home because they do not consider the home to be a safe place. Or they may decide that the baby can stay at home as long as their recommendations are followed.
Regardless of the decision, any investigation by CPS is scary for most people. It may help to have some information on what will likely happen next.
An investigation usually includes:
Interview – A CPS worker will talk with you about your substance use, medical care, and how you plan to take care of your baby.
Home visit —They may visit your home to check if it’s safe, clean, and has what a baby needs (like a crib, food, and electricity).
Talking to others – CPS might speak with your doctor, family members, or other people who help care for your baby.
Looking at your history – They’ll check if you’ve had other CPS cases or legal problems involving children.
Making a decision – Based on what they learn, they might:
- Close the case if they see no serious risk.
- Offer services to help you (like parenting classes, treatment, or home visits).
- Create a Plan of Safe Care so you can keep your baby while working on recovery.
- Place the baby with a trusted family member or in foster care if they think the baby is in danger.
There are many factors that can affect the likelihood of being reported and a family’s experience with the child welfare system, like poverty, race, immigration status, being a single parent, housing instability, disability, mental health concerns, substance use, and domestic violence. Although these factors shouldn’t be used to make a decision, they often are.
It’s important to note that families of color are likely to face more problems than white families. Compared to white families, Black families and other populations considered to be vulnerable are more likely to be reported for suspected poor treatment of their child; to have allegations or concerns lead to an investigation; and to have an investigation lead to consequences (including being removed from the home and placed in foster care).3
This is where legal support might be necessary. Organizations like Pregnancy Justice can help you advocate for your rights.
What if I’m taking medications for opioid use disorder?
Medications to treat opioid use disorder (MOUD) like buprenorphine and methadone do not typically show up on standard drug tests. However, some hospitals use more extensive drug tests, which can detect them. In some states, being on MOUD may trigger a notification to CPS, not because it’s illegal, but because the state has broad reporting requirements. If this is the case in your state, your prescriber can advocate for you.
What if I have a medical marijuana card?
Even if you’ve been prescribed marijuana (cannabis) for a medical reason, you may still be at risk if it shows up on your drug test. Testing positive for marijuana, even if you got it legally, can trigger a CPS investigation. This is something you may want to discuss with a trusted doctor. You can also ask them about alternative methods to treat symptoms like nausea, pain, and anxiety.
What Can I Do to Protect My Baby?
It can be a frightening to think that you could be at risk of losing your baby, especially if you are a Black woman. But there are steps you can take to protect your baby.
Get treatment. If you’re using substances or struggling with your mental health, getting help now is one of the best things you can do for your baby. It shows you care and want to keep your baby safe. Child Protective Services (CPS) often looks at whether a parent is willing to take steps to get better. Going to treatment, staying in the program, and keeping records of your progress can help show you’re taking this seriously.
Follow medical advice. Make sure to go to all your doctor appointments, both during pregnancy and after your baby is born. This helps keep both you and your baby healthy. When CPS sees that you’re going to appointments and following your doctor’s advice, it shows that you’re doing your part to take care of your baby.
Create a Plan of Safe Care: A Plan of Safe Care is a written plan that helps you and your baby get the support you need—like medical care, parenting help, or treatment for substance use. States are required to develop and monitor a Plan of Safe Care (POSC) for infants and families affected by substance use or withdrawal symptoms during pregnancy.4 Having it in place shows you are working to give your baby a safe and stable home. You can ask your hospital or CPS worker to help you make one.
Sample Plan of Safe Care
Parent Name: Maria R.
Baby Name: Baby R. (due 5/30)
Created By: Hospital social worker and CPS caseworker
Date: 5/20
- Medical Care
✅ Maria will attend all OB appointments and all baby checkups.
✅ Baby R. will be seen by the pediatrician 48 hours after discharge.
✅ Maria will take any prescribed medications as directed. - Substance Use Treatment
✅ Maria is enrolled in the New Hope Recovery Program.
✅ She will attend outpatient treatment 3 times a week.
✅ She will continue working with her substance use counselor, Ms. Lee. - Mental Health Support
✅ Maria will attend weekly therapy sessions for depression and anxiety.
✅ She will work with a case manager for medication management. - Parenting Support
✅ Maria will attend a parenting class for new moms, starting June 5.
✅ Maria’s mother will help care for the baby when Maria attends treatment. - Safe Living Environment
✅ Maria and the baby will live with Maria’s mother in a safe, stable home.
✅ Home has working utilities, food, and a crib for the baby. - Emergency Plan
✅ If Maria feels overwhelmed or has cravings, she will call her sponsor or treatment center.
✅ If an emergency happens, Maria’s mother will care for Baby R. and call CPS if needed.
Signatures:
✔ Maria R.
✔ CPS Worker
✔ Hospital Social Worker
✔ Treatment Counselor
Who Can I Turn to for Help?
At Partnership, our BabySTEPs Text Messaging Program offers a safe space for anyone who is pregnant or parenting a baby and is worried about their drinking or other substance use. It’s free, easy-to-use, and private, and it’s available in English and Spanish. You’ll receive text messages with information and support. You can also chat via text with our compassionate and experienced specialists who will listen to your concerns, provide guidance and direct you to other resources.
Text BABY to 55753 to start receiving personalized information and support via text.
- Many people can help you find treatment and support. Your OBGYN and/or midwife might be able to help you find specialized doctors or treatment centers that offer services specifically for moms and pregnant women.
- These centers, and other addiction care specialists, may be able to guide you to prenatal care with doctors who are recovery-friendly. They can also help set you up with a peer recovery coach who has had similar challenges, as they can provide support and guidance having “been there.”
- In terms of your rights, you can reach out to legal aid services in your community. They can explain what the law says in your state about substance use during pregnancy. They’ll let you know what CPS, the hospital, or the court is allowed (and not allowed) to do. If there’s a court case or CPS is involved, a legal aid attorney can speak on your behalf. They can argue for your right to stay with your baby, especially if you’re getting treatment and creating a safety plan.
Helpful Resources
Some other resources include:
- MotherToBaby – They offer a great deal of information on the benefit or risk of medications and other exposures during pregnancy and while breastfeeding.
- Safe Locator – Safe Locator is a search tool you can use to find treatment programs that specialize in helping pregnant women.
- Pregnancy Justice – This organization defends people who face investigation, arrest, or detainment related to any pregnancy outcome or were forced to have a surgery because of pregnancy.
If you’re worried about your baby being taken away, know this: You have options, and you are not alone. A positive drug test doesn’t automatically mean you’ll lose your baby. Getting help, creating a plan, and being open with your care team can make a big difference.
This article is for educational purposes only. Partnership to End Addiction does not necessarily endorse or support the policies and actions of Child Protective Services across different states.