Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

Substance Use Disorders

Introduction

A. Statewide Overview of Substance Use

Substance use by parents in DFPS cases is very common. According to the National Center on Substance Abuse and Child Welfare parental substance use was a condition associated with removal in 76.7% of children under the age one and 62.6% of children over the age of one in Texas.^[145]

1. Relevant Trends

Methamphetamine continues to be perceived as the primary drug threat by the three Drug Enforcement Agency (DEA) Field Divisions covering Texas. Cocaine indicators continue to decrease. However, heroin and fentanyl indicators have been increasing, including the adulteration of the heroin supply, the use of fentanyl alone or in combination with other substances such as methamphetamine, and pressed pills disguised to look like prescription opioids and sedatives. About half (51.6%) of drug-related deaths in 2022 had at least two substances indicated and over half (68.5%) of drug deaths involving more than one substance included fentanyl.^[147]

For information about drug-related deaths and trends in Texas, please visit the Department of State Health Services Texas Health Data Dashboard.^[148]

2. Useful Definitions:

•   Substance Use: The use—even one time—of any substance.^[149]

•   Substance Misuse: The use of any substance in a manner, situation, amount, or frequency that can cause harm to users or to those around them. For some substances or individuals, any use would constitute as misuse (e.g., under-age drinking, injection drug use).^[150]

•   Substance Use Disorder (SUD): A medical illness caused by repeated misuse of a substance or substances. According to the DSM-5, substance use disorders are characterized by clinically significant impairments in health, social function, and impaired control over substance use and are diagnosed through assessing cognitive, behavioral, and psychological symptoms.^[151]

•   Recovery: a process of change through which individuals improve their health and wellness, live self-directed lives, and strive to reach their full potential. The process of recovery is highly personal and occurs via many pathways. It may include clinical treatment, medications, faith-based approaches, peer support, family support, self-care, and other approaches. Recovery is characterized by continual growth and improvement in one's health and wellness and managing setbacks. Because setbacks are a natural part of substance use, resilience becomes a key component of recovery.^[152]

Every health region in Texas has an Outreach, Screening, Assessment and Referral (OSAR) Program which can assist any Texas resident with finding appropriate treatment and community resources. To find local resources and additional assistance, please visit the HHSC OSAR webpage.^[153] Individuals can also locate substance use services in their area by visiting the Health and Human Services - Substance Use Service Locations map.^[154]

B. Substance Use Among Women

Substance use in women tends to be multifaceted and can be related to family or partner use or co-morbid mental health conditions such as depression, anxiety, and eating disorders. Additionally, SUDs in women are strongly correlated with histories of trauma as well as experiences during childhood with personal violence. As a result of using substances, women could experience physical complications, may be at higher risk of losing custody of children under their care, and could be at increased risk for co-occurring mental health disorders and exposure to partner violence. Additionally, women who use substances during pregnancy have an increased risk of infant fetal alcohol spectrum disorders, long-term cognitive deficits, low birth weight, and miscarriage or maternal death.^[155]

A gender-responsive approach to the treatment process and recovery for women includes the importance of relationships and family, the prevalence and history of trauma and violence, common patterns of co-occurring disorders, and, when applicable, particular recognition of caregiver responsibilities.^[156]

According to a 2009 Substance Abuse and Mental Health Services Administration (SAMHSA) publication, pregnant women may be reluctant to seek prenatal care due to fear of losing custody of the infant or other children. Most mothers who are in SUD treatment feel a strong connection with their children and want to be good mothers. Most of these mothers want to maintain or regain custody of their children and become “caring and competent parents.” Women who believe they have not cared for their children adequately or who believe that they are perceived as having neglected their children carry enormous guilt. Therefore, for many women, maintaining caring relationships with their children is sufficient motivation to keep them in treatment. Unfortunately, they often have inadequate role models in their own lives or lack the information, skills, or economic resources that could make motherhood less difficult.^[157]

C. Pregnant Women and Relapse Prevention and Safety Plans

1. Pregnant Women and Substance Use

Since 1994, SAMHSA has designated pregnant women as a federal priority population in SUD treatment services. In Texas, a pregnant woman who is financially eligible and clinically appropriate must be admitted to HHSC-funded treatment services within 48 hours of the woman's request for service.^[158]

Neonatal abstinence syndrome (NAS) is a treatable condition that newborns may experience as a result of prenatal exposure to certain substances, most often opioids. Neonatal Opioid Withdrawal Syndrome (NOWS) is a related term that refers to the symptoms that infants may experience as a result of exposure to opioids specifically.^[159] Pregnant women using opioids should not discontinue opioid use due to the risk of maternal return to use, overdose, withdrawals, and fetal demise. The American College of Obstetricians and Gynecologists (ACOG) and SAMHSA recommend Medication Assisted Treatment (MAT) as a best practice in managing an opioid use disorder in pregnancy.^[160] Tapering of MAT dosing during pregnancy is also associated with more frequent return to use. Prior to birth, engaging pregnant women with opioid and other substance use disorders in substance use treatment and other services as a component of prenatal care can also mitigate or prevent negative birth outcomes associated with NAS and NOWS.^[161] Research also indicates women with substance use disorder should continue their opioid agonist pharmacotherapy (also referred to as MAT) postpartum. The postpartum period represents a time of increased vulnerabilities, and women with opioid use disorder relapse far more often in the postpartum period compared with during pregnancy.^[162]

2. Relapse/Return to Use Prevention

According to the National Center on Substance Abuse and Child Welfare, research shows medications used in MAT, when provided at the proper dose, have no adverse effects on a person's intelligence, mental capability, physical functioning, or employability. MAT, along with a range of clinical and supportive services, can help people achieve stability while focusing on other aspects of their recovery, such as finding work, housing, or enhancing their parenting skills.^[163]

A study published in the Journal of Substance Use and Addiction Treatment^[164] showed parents diagnosed with an opioid use disorder, involved in child welfare, and who received medications, had a significantly higher prevalence of retaining child custody than a comparison group not receiving MAT. With each additional month of MAT, parents in the study were 10% more likely to retain custody; the number of parents who retained custody increased to 120% after one year. Parents in DFPS cases who have difficulty with substance use may relapse or return to use. However, with the right support and appropriate level of intervention, it is possible for a child to achieve successful reunification with a parent who has addressed or is addressing their substance use.

At this time, there are no standardized resources statewide. DFPS uses state funded and community resources that use individualized treatment approaches to meet the needs of parents and families. DFPS policy states the following in relevant part regarding relapse prevention planning:

•   Relapse is a return to a pattern of substance use after a period of non-use.

•   In the relapse safety plan, the client, along with a trusted support system, plans to ensure the safety of the child or children in case relapse becomes an issue.

•   Court orders supersede any actions that the client requests in the relapse safety plan.

•   A relapse safety plan can be developed at any stage of service.

Please see Developing a Safety Plan in Case a Client Relapses CPS Policy Handbook § 1982.2 for more information.^[165]

D. DFPS Response to Substance Use Disorders

The Child Abuse Prevention and Treatment Act (CAPTA) (P.L. 93-247) was originally enacted in 1974, was last reauthorized in 2010, and amended most recently in 2019; additionally, certain provisions were amended by the Comprehensive Addiction and Recovery Act (CARA) of 2016 and the Victims of Child Abuse Act Reauthorization Act of 2018 (P.L. 115-424).^[166]

Under these federal laws, states are required to have plans of safe care for infants born and identified as being affected by substance use or withdrawal symptoms of both legal and illegal substances. The plans of safe care are required to “ensure the safety and well-being of such infant following [the infant's] release from the care of healthcare providers” to be achieved through “addressing the health and substance use disorder treatment needs of the infant and affected family or caregiver.” 42 U.S.C.S. § 5106a(b)(1)-(2).

To avoid confusion, DFPS does not utilize the unique federal term “plan of safe care” as set forth in CARA, as there are a number of DFPS tools and policies that reference “plans.” Statewide Intake protocols, safety and risk assessment tools, and the service planning process used in different stages of service, collectively mean that the state meets the requirements under the CARA plans of safe care.

Examples of types of plans that do not include removal include: use of Parental Child Safety Placements (PCSP) to assure safety as the parent initiates or becomes engaged in services; use of residential substance use disorder treatment programs that allow a mother (or father in a few programs) to live in a treatment setting with the child, when appropriate; use of Medication-Assisted Treatment in combination with behavioral therapies; and the guidance of specialized drug courts in some areas. While access to treatment can be challenging, families referred by DFPS are considered a state priority population for state-funded substance use intervention and treatment services. In Texas, a client who is not pregnant and is referred to an HHSC-funded substance use intervention or treatment service by DFPS must be admitted to services within 72 hours or 3 business days, depending on the program or services.

DFPS currently has a grant through the Family First Prevention Services Act (FFPSA) that allows children in DFPS conservatorship to be placed with their mothers in one of three contracted residential substance use treatment facilities. This program allows children to be placed on a monitored return with their mothers in these facilities while the mothers receive residential treatment services while also allowing the facilities to receive reimbursement for the room and board of the children. The goal of this program is to enable reunification of children with their mothers when the primary barrier for reunification is the mother's need for residential substance use treatment.

Doctors and nurses are required by mandatory reporting laws to report suspected child abuse and neglect if they have reasonable cause to believe the child has been abused as defined by statute. Tex. Fam. Code § 261.101(b). Definitions of child abuse in Texas law include the current use of controlled substances by an adult in a manner or to the extent that the use results in physical, mental, or emotional injury to a child. Tex. Fam. Code § 261.001(1)(I).

DFPS Statewide Intake advances any reports of substance-exposed infants to the field for an investigation. During the investigation, multiple steps occur including: a child assessment, parental assessment, holistic family assessment, safety planning, and the development of initial services. In some cases, the parent has sufficient support and is protective and/or engaged in treatment services, thereby eliminating the need for further DFPS involvement beyond investigation. Other parents may be assisted in development of a plan and access to services during the investigation stage of services, or a Family-Based Safety Services (FBSS) stage may be opened to provide ongoing services without removal. Where safety cannot be assured, DFPS will seek removal of the infant.

3. Behavioral Health Division at DFPS

DFPS has a Behavioral Health Services Division within CPS, with Behavioral Health and Substance Use Disorder spread throughout the state. The division is part of a broader CPS Medical Services Division that supports staff meeting medical, behavioral health, and dental needs for children in DFPS conservatorship. The combined Medical and Behavioral Health teams assist legacy and SSCC direct delivery staff with access to Medicaid services (STAR Health) and other public behavioral health services available to children and families. The broader team includes the DFPS Medical Director, Well-Being Specialists, Nurse Consultants and supporting staff. These positions complement two additional Substance Use Program Specialists and two Mental Health Program Specialists who report to Child Protective Investigations. The combined team works together to overcome barriers to services, and provide support, resources, and technical assistance to direct delivery staff in their work with families and youth through every stage of service.

E. Resources

Children and Family Futures^[167]

American Addiction Centers' Information on Addiction Signs, Symptoms, Effects, and Treatment^[168] and Addiction Cravings: Symptoms, Treatment and Relapse Prevention^[169]

National Institute on Drug Abuse^[170]

National Center on Substance Abuse and Child Welfare (NCSACW)^[171]

•   NCSACW Information on Family Treatment Drug Court^[172]

National Council of Juvenile and Family Court Judges Substance Use and the Courts (NCJFCJ)^[173]

Substance Abuse and Mental Health Services Administration (SAMHSA)^[174]

Texas Health and Human Services Mental Health and Substance Use