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Angela Jenkins grabbed her common-law husband by the shoulders and shook him from his sleep. It was time; the baby was coming. At three in the morning on September 22, Aaron Asher rushed Jenkins to the Memorial City branch of Memorial Healthcare System, where she gave birth to their second child, Sylvan Asher.
It should have been the joy of motherhood and a growing family. Instead, a week later, the couple had no children. Sylvan and the couple's older child, Bishop Asher, were gone, taken away by the state. Jenkins and her newborn had both tested positive for marijuana.
Under Children's Protective Services' policy, testing positive for substances while pregnant constitutes physical abuse. A CPS caseworker seized Sylvan and a week later showed up unannounced at the family's apartment. Citing "imminent danger," she also removed the couple's one-year-old boy, Bishop, without a court order.
But was it right for CPS to do so? CPS spokesperson Judy Hay says the family displayed distressing symptoms: possible drug abuse, frequent job changes and a lack of support from relatives. Research indicates, she adds, that such factors put children at high risk for neglect, abuse and even death.
The couple's attorney, Phil Swisher, has another interpretation: "I think [CPS] screwed up, and they can't admit it. They screwed up by taking the children, and they took them without court authorization. I think they're trying to cover their posteriors," he says.
"The issue is: Do we live in a country where the government can come into your home without a court order and take your child? I think to do that they better have a damn good reason, and I haven't heard one yet."
So far the only undisputed evidence is Jenkins's positive drug test, which she says is the result of a single use, to alleviate pain during her pregnancy.
The young mother testified at an October 19 district court hearing that she occasionally used marijuana, but no other drugs, and quit when she became pregnant with Bishop. Before Sylvan's birth, the family lived with Jenkins's father in his Spring Branch-area home but were not on amicable terms. When Thomas Jenkins noticed his daughter was pregnant again, he told the couple to move out. That night, she says, she endured severe cramping for three hours before unlocking a living-room cabinet where she had previously seen stubs of two joints in an ashtray. Everyone else was asleep.
"I was having bad contractions, and I thought maybe it would help me sleep," Jenkins says. "It's used for medical reasons, so I tried it. It did help, and I went to sleep.I was suffering. I did it because of the pain." Both Jenkins and her father say they have no idea where the pot came from.
Two days later Sylvan came into the world and tested positive for marijuana. Drug testing in pregnancy is not standard procedure, says Beth Sartori, assistant director of corporate communications at Memorial Healthcare System. But it can be performed on a physician's request, or in Jenkins's case, when the mother's prenatal care is questionable.
It's not just the positive drug test, but also the absence of prenatal care that troubles CPS, Hay says. Moreover, Sylvan was several weeks premature and has hydrocephalus, a sometimes fatal condition of water on the brain. (The abnormality is not necessarily preventable with prenatal care, which the parents say they could not afford, adding that they unsuccessfully applied for Medicaid four times.)
"Whether it was one or ten marijuana cigarettes, we really don't know," Hay says. "She did expose her unborn baby, plus he was medically fragile. We were concerned with improper care."
The couple, though, say that CPS is more interested in nailing them for the marijuana use than in securing the welfare of the children. "They took advantage of our distraction," Jenkins says of Sylvan's hydrocephalus. "We were devastated by the news that our child could possibly die. The nurses and doctors said not to worry. 'It's not like you have coke in your system; it's just a little pot.' "
A little weed though, by CPS standards, is enough to endanger Bishop and is grounds for his emergency removal without court authorization. Asher is skeptical. "If he was in 'imminent danger,' why did they wait a week before they got him?"
Hay says CPS spent that week trying to place Bishop with a relative before settling for foster parents. "For those few days Mom was still in the hospital. The newborn was not home or anything, so after looking at the home, we did feel like both children needed to be out for their safety, but we were hoping they would go into a relative's home," she says.
Yet at the hearing CPS caseworker Pepper Nichols testified that the couple's apartment was "clean" and that Bishop "seemed happy and well nourished." The couple complain that when Nichols arrived to take Bishop, the investigator sat on the living-room couch and didn't even notice the apartment has two bedrooms, one for the children, with a closet full of blankets and tiny clothes.
"They didn't even ask for his shots record," Jenkins says, close to tears. "He's due for shoots soon. They're not concerned about that, but I am."