Will DSS take your children because you smoke marijuana? 

A lot of people smoke pot in SC – even though it is still a crime here, and law enforcement is likely to treat it like any other illegal drug (you will be arrested and jailed for possession of marijuana in SC). 

Although smoking marijuana may seem harmless to pot smokers with children, many police, prosecutors, legislators, judges, and DSS workers in SC will disagree. 

In this article, we will discuss the potential negative legal consequences of smoking marijuana in SC if you have children, including:

• Whether DSS will take your children away solely because you smoke marijuana,
• Situations where DSS might get involved due to marijuana use, and
• Criminal legal consequences for smoking pot in SC.  

Will DSS Take My Children Because I Use Marijuana? 

DSS could take your children because you smoke marijuana, but it is not likely unless there are other circumstances that would cause immediate concern for the child’s welfare. 

When it comes to DSS and your children, some of the legal consequences of smoking weed could include:

• Emergency protective custody (EPC) if “the child’s life, health, or physical safety is substantial and imminent danger,”
• DSS refusing to return the children if the parents fail a drug test, 
• A DSS investigation and treatment plan that includes substance abuse counseling and drug tests, 
• A finding that a newborn has been abused or neglected if the child’s mother fails a drug test – resulting in criminal charges and/or placement on the child abuse registry, 
• Termination of parental rights, and
• Criminal charges. 

When DSS Could Get Involved Due to a Parent’s Marijuana Use

There are several situations where DSS could take your children or open an investigation due to marijuana use. In most cases, someone simply reporting that a parent has smoked marijuana will not result in legal consequences, but:

• If the drug use happens in front of the child, you are more likely to hear from DSS, 
• If a parent alleges that the other parent uses drugs during divorce or child custody proceedings, the court may order a drug test, and
• You should be aware that the plain language of some of the statutes below covers marijuana use as well as the use of “hard” drugs or alcohol. 

DSS Can Remove Your Children if They Find that the Children are Being Abused or Neglected

Don’t think that simply smoking weed constitutes abuse or neglect of a child? Many people will agree with you, but some – including judges and DSS workers – may disagree. 

SC Code Section 63-7-1660 authorizes DSS to petition the family court to remove a child from their home if “the child is an abused or neglected child and… cannot be protected from unreasonable risk of harm affecting the child’s life, physical health, safety, or mental well-being without removal.” 

SC Code Section 63-7-620 authorizes law enforcement to take a child into “emergency protective custody” if the officer has probable cause to believe that “the child’s life, health, or physical safety is in substantial and imminent danger if the child is not taken into emergency protective custody, and there is not time to apply for a court order pursuant to Section 63-7-1660.”

Is smoking marijuana considered child abuse or neglect? It could be, depending on the circumstances and who you are asking… 

A Positive Drug Test at Birth = Child Abuse and Neglect

SC Code Section 63-7-1660 also says that there is a presumption that “a newborn child is an abused or neglected child” if a drug test of the mother “shows the presence of any amount of a controlled substance or a metabolite of a controlled substance unless the presence of the substance or the metabolite is the result of medical treatment administered to the mother of the infant or the infant…” 

Marijuana is a controlled substance in SC and (as of May 2022) is not a valid medical treatment for any purposes, which means if you test positive for marijuana during childbirth, you are presumed by law to be abusing or neglecting your child – which could result in DSS taking your child away, treatment plans and drug tests to keep your child, and criminal charges for abuse and neglect. 

What are other possible legal consequences for smoking marijuana when you have kids? 

• A positive drug test could prevent reunification if your children are in DSS custody or foster care, 
• If a parent fails to complete drug treatment or refuses to attend drug treatment when ordered, SC Code Section 63-7-2570 says that the family court can terminate their parental rights, 
• A parent could be placed on the Central Registry of Child Abuse and Neglect if a newborn tests positive for a controlled substance, and
• The parent could face criminal charges for marijuana. 

Criminal Charges for Marijuana in SC

Although we do not accept family court cases at Coastal Law, we can help you to locate the right attorney if you call our office. 

On the other hand, if you are facing criminal charges for marijuana use in SC, the marijuana defense lawyers at Coastal Law may be able to help you get your charges dismissed, keep your record clean through a pretrial diversion program, or win your case at trial, including charges for:

• Child abuse and neglect, 
• Child endangerment associated with DUI charges, 
• Contributing to the delinquency of a minor, 
• Simple possession of marijuana, 
• Possession with intent to distribute marijuana, 
• Manufacturing marijuana, 
• Distribution of marijuana, or
• Trafficking marijuana. 

Marijuana Defense Lawyers in Myrtle Beach, SC

If you have been charged with marijuana possession, marijuana distribution, or marijuana trafficking in SC, or criminal charges for using or possessing marijuana in the presence of a minor, your marijuana defense attorney at Coastal Law may be able to help you.  

You can schedule a free consultation to discuss the facts of your case with a Myrtle Beach drug defense lawyer at Coastal Law, LLC, by calling (843) 488-5000 or filling out our online form.