NORML Foundation Board Member John P. Morgan, M.D., wrote an invaluable affidavit on urine analysis. Reproduction rights expert Lynn M. Paltrow, Esq., Director of the National Advocates for Pregnant Women project of the Women’s Law Center, provided extensive, critical legal research. NLC member Alan Silber acted as "brain trust." NORML Foundation’s Chairman of the Board, Lester Grinspoon, MD, the NLC’s Ted Simon and Sara Webster, and prominent sociologists Lynn Zimmer, Ph.D., Marcia Rosenbaum, Ph.D., and Sheigla Murphy, Ph.D., stood ready to assist.

Deneen Clark’s story reveals how a pregnant woman or new mother can lose her child merely because she smokes marijuana.

When Deneen went into labor, happiness filled her heart. A few years ago, Deneen, who has healthy 8 year old daughter, suffered a miscarriage, and delivered a 5 ½ month old fetus/child. The child died in utero from congenital defects.

"After delivering death," explains Deneen, her labor pains with her new child symbolized the "joy and miracle of life." Kennedy Memorial Hospital’s admitting R. A. presumed Deneen’s joy indicated drug use.

Without Deneen’s knowledge or consent, the R. A. ordered drug testing of Deneen’s urine sample. Deneen had supplied blood and urine samples when admitted to the hospital for her caesarian section. Her samples were requested as a routine matter although such samples are not routinely tested for drugs.

Deneen delivered her son, Justice, on December 28, 1998. Less than 24 hours later, intake officer Bob Moore of N.J.’s Department of Youth and Family Services (DYFS) approached Deneen’s recovery bed. Moore declared Deneen probably would not leave the hospital with her son.

The hospital had informed DYFS that Deneen’s urine tested positive for unspecified levels of THC metabolites and other drugs and Justice showed positive for morphine. DYFS then "determined" that Deneen had committed "child abuse" and "child neglect."

Outraged, Deneen asserted she smoked marijuana occasionally but consumed no other prohibited drugs. She immediately demanded another urine test.

Before test results returned, Kennedy Memorial admitted that Justice’s morphine and some drugs evident in Deneen’s urine wholly derived from pain killers the hospital dripped into Deneen’s blood stream to prepare for surgery.
(Marijuananews note: Notice that it is alright for the baby to have morphine in his system – as long as it came from the hospital, but not marijuana. Just as it was alright for the mother to take valium to deal with the stress caused by the loss of custody of her child because of her marijuana use.)

Deneen provided this urine sample less than 24 hours after Justice’s birth. The sample tested positive for 5-9 nanograms of THC metabolites. Typically, a metabolite level below 50 nanograms is considered negative for marijuana. DYFS, on the other hand, asserted that the 5-9 nanograms "substantiated" their "determination" of the child abuse and neglect.

Deneen and Justice left Kennedy Memorial together. The following days were a nightmare. DYFS continued to threaten to remove Justice. DYFS searched Deneen’s home ("they called it home visits"), collected more urine samples (all tested zero for THC metabolites), and pressured Deneen to drop legal representation. The stress caused Deneen to resume psychiatric counseling and prescribed valium.

Deneen refused to stop fighting for her son. Buckman filed an appeal within DYFS and alerted DYFS that Deneen would no longer accept searches or provide urine samples. DYFS filed an emergency motion with Judge Nardi of the Superior Court of New Jersey Chancery Division-Family Part in Camden, N.J. Buckman filed a brief with an attached affidavit by Dr. Morgan. Dr. Morgan challenged the positive drug showing in Deneen’s urine as potentially deriving from hospital administered drugs or Deneen’s prescription or over-the-counter medication. DYFS dropped allegations of illegal drug use apart from marijuana.

Judge Nardi skimmed Dr. Morgan’s affidavit and Buckman’s brief, focused on DYFS’s claim that Deneen’s psychiatrist stated Deneen’s medication could render Deneen unfit to care for Justice during temporary periods, and placed Justice in the "care and supervision of DYFS." Judge Nardi further ordered Deneen to make Justice available for x-rays, photographs, and an AIDS test to render Justice eligible for foster care placement and to search for additional evidence of child abuse.

Buckman obtained certification from Deneen’s psychiatrist that the psychiatrist never stated Deneen was anything but a fully capable parent. Lynn Paltrow notified a feminist N.J. prosecutor of the state’s harassment of Deneen. Buckman supplied the court with a supplemental brief. On March 31, 1999, Judge Nardi called Buckman hours before a scheduled hearing to announce the case had been dropped.

Deneen named her son "Justice" before learning the state would threaten to take him away. In Buckman’s thank you letter to Deneen, he wrote, "Perhaps now we can hope that his name will begin to symbolize what you had originally intended."