A new law passed this year by the Washington Legislature could expand the reach of Child Protective Services (CPS) to further intervene in cases where parents or caregivers struggle with substance use disorders.
The law also boosts funding for CPS, the state’s Administrative Office of the Courts, the Washington State Health Care Authority and the Department of Children, Youth and Families (DCYF) to train staff about the dangers of synthetic opioids like fentanyl, increase addiction treatment and initiate two pilot programs to help prevent children from entering the child welfare system.
Senate Bill (SB) 6109, which was signed by Gov. Jay Inslee on March 28, requires courts to emphasize the lethality of the presence of “high-potency” synthetic opioids. The law raises the presence of those drugs to the same level of endangerment as sexual abuse, sexual exploitation and severe neglect.
State Sen. Claire Wilson (D-Federal Way), the sponsor of the bill and chair of the human services committee, said it was not intended to penalize families or increase family separations but instead address the rising impacts of fentanyl on young children. According to a January 2024 DCYF presentation, incidents involving the death or near-death of children 2 years old and younger nearly doubled between 2020 and 2023, from 27 to 51. This increase is largely driven by opioids; in the same time period, opioid-related critical incidents increased eleven-fold, from three to 33.
Under federal and state laws, CPS is required to investigate reports of child abuse and neglect. If the investigation concludes that a child has been abused or neglected or is at imminent risk of harm, the agency removes them from the family and starts a dependency case presided over by a judge or commissioner who can determine whether the child should return home or be permanently removed and placed in the foster care system.
In 2023, 1,790 dependency cases were filed in county courts across Washington. According to DCYF, 3,302 children were removed from their homes between July 1, 2022, and June 30, 2023.
A 2019 memorandum prepared by the American Bar Association found that removal of children from their caregivers causes mental and psychological harm. The literature review of clinical research also showed that out-of-home care puts kids at risk of further maltreatment in the child welfare system, leading to lower life expectancies, elevated risk of involvement in the criminal legal system and lower earnings as adults.
Child removals also disproportionately affect Black and Indigenous communities in Washington state. DCYF data shows that in 2021, Indigenous children were 2.63 times more likely to be removed from their homes compared to the overall population, while Black children were 1.38 times more likely.
In response to these stark inequities and to the harm children face after being removed from their homes, the Washington Legislature passed the Keeping Families Together Act in 2021 to make out-of-home removal a last resort and prioritize placement of foster children with relatives in their communities. The law went into effect July 1, 2023, and early data suggests it could be effective in reducing the impact of the child welfare system.
Coupled with a decline in removals during the COVID-19 pandemic, the Keeping Families Together Act has resulted in the total number of children in the system declining from 8,930 in January 2018 to 5,313 in January 2024. The child placement rate with relatives has also increased from 43.9% to 55.9% between 2016 and 2023.
Some decriminalization advocates say SB 6109 runs counter to these efforts to reduce the impact of the child welfare system. Malika Lamont, the director of the grassroots advocacy group VOCAL Washington, said the new law will make it harder for kids to remain in their homes if they have family members who have substance use disorders.
“We have evidence-based approaches to support children at home. I’m not saying that there are no situations that are dangerous; children need to be removed from a dangerous situation,” Lamont said. “However, this bill is really alarming in how it will potentially impact folks, and it’s not going to impact people equally — whether it’s by race, whether it’s by geography, whether it’s by financial impact. We don’t have the infrastructure in a lot of rural areas to have a robust foster care system. And there may not be other options within the family, if multiple generations have their own substance use issues and they’re disqualified as a result of this law for being kinship care.”
VOCAL Washington organizer Deaunte Damper said he was worried SB 6109 would bring about further criminalization of drugs through the back door.
“They’re trying to sneak in these different bills to criminalize community members,” Damper said. “Especially Black and Brown families ... will be most impacted by this. [They are] more likely to have … years and years of going through these hoops.”
Last year, the Legislature increased the criminal penalties for drug possession from a simple misdemeanor to a gross one, punishable by up to 364 days in jail. When Seattle City Attorney Ann Davison tried to pass a similar measure to allow prosecution of possession in the Seattle Municipal Court, activists rallied and successfully blocked its passage in June. But in September, a reworked ordinance that placed greater emphasis on diversion was passed by the Seattle City Council. At the time, community organizers claimed the laws could spark a “new War on Drugs” and reiterate a familiar pattern of targeting poor Black and Brown communities.
Sen. Wilson said SB 6109 would help address the perception that the state wasn’t doing enough to tackle the effects of the fentanyl on children and dispel the notion that the Keeping Families Together Act was causing the increase in opioid-related critical incidents.
“What was happening with the fentanyl crisis is [that] people were conflating the fact that because we were working on kinship care, guardianship care and keeping families together, that it was causing the fentanyl crisis,” Wilson said. “That’s not it at all. The fentanyl crisis is a public health crisis, and keeping families together is a whole [different thing]. One was not causing the other. As a chair, it was important to say, ‘OK, what should we be doing, and what clarity do we need to make ... and what are the gaps in services that have been existing forever that families need.’”
Wilson rejected the characterization of SB 6109 being a “carrot and stick” approach that could lead to further criminalization and harm. According to her, she’s had input from the Legislature’s member of color caucus and has always had Black and Brown co-signers on her legislation. Wilson also expressed openness to revisit the law if there are unintended consequences.
“If this goes the wrong way, then we got to make a change, because the goal is not to disproportionately remove and continue to remove children,” Wilson said.
Lamont said the law comes in a political context where justified fears about the devastating impacts of fentanyl have been used to whip up a moral panic and roll back progressive drug policy reforms.
“It’s scary. I mean these are all very alarming things,” Lamont said. “But instead of being creative and doing things that make sense, like talking about safe supply or talking about decriminalization and legalization and regulation of [psychoactive] molecules, we are reverting back to things that are familiar but not effective.”
It is unclear how much of an impact SB 6109 will have when implemented, as CPS already removes children due to substance use disorders. Between 2017 and 2023, an average of 44% of dependency causes filed in court listed drug abuse as the sole or a secondary reason for removal. Legislative analysts predicted this proportion will increase to 49% under SB 6109.
While Wilson and VOCAL Washington are at odds over the new law, they both agree substance use disorder should be treated as a public health emergency and not a criminal legal issue. Wilson added that she was excited about the $123.3 million Washington state received from the pharmaceutical company Johnson & Johnson in a lawsuit settlement in January, noting the impact the money could have to alleviate the opioid crisis.
Guy Oron is the staff reporter for Real Change. He handles coverage of our weekly news stories. Find them on Twitter, @GuyOron.
Read more of the April 3–9, 2024 issue.