Drug Exposed Child: The "Legal" Weed Trap

In Tennessee, the Department of Children's Services’ (DCS) mission is supposed to be to protect the best interest of the child. A key part of DCS’s mandate involves investigating allegations of abuse and neglect. One of the most serious and complex situations arises when a child, particularly a newborn, is designated as a "drug exposed child."

In Tennessee, a newborn who tests positive for any illegal drug is considered a victim of physical abuse, according to DCS Policy. This can automatically trigger a DCS investigation, even if there are no other signs of harm or withdrawal symptoms in the infant.

A disturbing new trend has emerged in Tennessee: Mothers are being substantiated for child abuse after using legally purchased products.

You can walk into a store, buy legal CBD, Delta-9, or THCA products, and still face a DCS investigation that threatens your custody and career. If you are a mother using these legal products, you need to understand how DCS uses views cannabis use while pregnant.

"Drug Exposed Child" 

DCS investigators often rely on positive THC urine and meconium tests at birth to determine if an allegation is substantiated. 

According to DCS, a Drug Exposed Child is defined as a person under eighteen (18) who:

• Has been exposed to a substance: The definition includes exposure to "a drug or chemical substance... that could adversely affect the child's physical, mental, or emotional functioning."
• Has a parent whose ability is "impacted": DCS can substantiate abuse if they believe the parent uses substances in a way that "impacts their ability to adequately care for the child."

The Trap for Moms

DCS investigators often do not distinguish between illegal marijuana and legal hemp-derived THC (Delta-8, Delta-9, THCA). When a drug screen comes back positive for THC, they often proceed immediately to substantiation, ignoring the fact that the product was purchased legally. They argue that even legal substances, if they cause impairment, "adversely affect" your ability to parent.

"(Severe) Drug Exposed Child ”

The stakes get higher if DCS decides to categorize the case as Drug Exposed Child (Severe). According to DCS Policy, this includes:

• Ingestion by a Child: Knowingly or with gross negligence allowing a child under eight (8) years of age to ingest an illegal or controlled substance that results in a positive drug screen.
• Accidental Edible Ingestion: Because legal gummies and chocolates look like candy, accidental ingestion is a major risk. If a child eats your legal Delta-9 gummies, DCS will likely classify this as "Severe Abuse," arguing you were "grossly negligent" in storing a "controlled substance" (as they often categorize THC regardless of source) accessible to a child.

Here's what you need to know: 

• CBD's Complicated Relationship with THC: Legal CBD products are required to contain less than 0.3% THC. A mother who has been using a legal CBD product could still test positive for THC, which can be interpreted by DCS as evidence of illegal drug use.
• The Abuse Registry: When DCS "indicates" a finding of child abuse or neglect, your name can be placed on the state's child abuse registry. This can have life-altering consequences, affecting your ability to find employment in healthcare, education, or childcare, volunteering, prevent you from adopting or fostering, or even have contact with other children.
• The Law: In July 2024, a new Tennessee law was enacted that excludes a positive prenatal or newborn drug screening for cannabinoids from the definition of child abuse and severe child abuse. This is a significant step forward, but it does not mean that DCS will ignore a positive test or that an investigation will not be launched. It simply removes the criminal abuse designation.

Why You Should Hire Us to Fight Your Case

Defending a case involving legal CBD or THC requires a modern, aggressive strategy. Many investigators are stuck in the past, treating all THC positives as evidence of illegal drug use. 

Do not let DCS destroy your family. 

If you have tested positive for THC or are being investigated for using THC, contact Nicholson & Hall, PLLC immediately.