Smoking May Be Hazardous To Your Parental Rights

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An influential health-advocate is urging judges tp revoke child custody of smokers, even if they don’t smoke in the presence of their children.

According to a press release issued on February 12 by Professor John Banzhaf of the George Washington University Law School: “Smokers who have been awarded full or partial custody of their children, or even simple visitation privileges, in a divorce proceeding could lose custody or have their rights curtailed as the result of a new report showing that tobacco smoke residue on furniture, rugs, draperies, etc.”

The smoke residue, often called third-hand tobacco smoke, “can be as hazardous to a child’s health as secondhand tobacco smoke, says public interest law professor John Banzhaf, who has helped obtain court orders prohibiting smoking in private homes in dozens of states,” his release explains.

There is more. Banzhaf’s release continues on to say:

Increasingly, judges are considering the very harmful effects of secondhand tobacco smoke on children involved in divorce and custody disputes, and taking appropriate action to protect them. In some cases, parents have actually been denied custody because they smoke.

More commonly, however, says Banzhaf, who developed the legal theories under which nonsmokers are challenging their former smoking spouses, a judge will permit the child to visit the smoker, but only if there is no smoking in the home – sometimes 24 or even 48 hours prior to the visit.

Such judicial orders, banning smoking in homes while the child is present and for a reasonable period before visitation, are designed to protect the child from the well known hazards of secondhand tobacco smoke, and have been issued in about three fourths of all the states over a period of some 20 years.

But these judicial protective orders, in many states now being issued routinely, may no longer be sufficient to adequately protect a child, according to a new study at the University of California, Riverside, which found that third-hand smoke can be just as deadly as secondhand smoke.

Third-hand smoke, previously known as tobacco smoke residue, is the “tobacco smoke contamination that remains after the cigarette has been extinguished,” according to Scientific American. It has been labeled “toxic” by the medical journal Pediatrics, and a cancer risk to nonsmokers of all ages.

There is more still. Banzhaf explains that the new study “would provide a legal basis for a nonsmoking parent to reopen and modify a custody proceeding by arguing that a temporary ban on tobacco use by the smoking parent, or other smoking resident of the home, provides insufficient protection for the child’s health.”

The implications are clear. Because of the lingering third hand smoke in the home, even a smoker who quits would need to potentially replace carpets, furniture, drapery, and clothing. Walls would need to be repainted, and appliances would need to be scrubbed. This is so even in the event that a non-smoker moves into a home formerly occupied by a smoker, he asserts.

Beyond that, Banzhaf says that “he would be willing to work with and assist attorneys seeking to reopen custody determinations on that legal basis.”

The upshot of all this would be that once accepted by the courts, “this new argument, and the scientific research supporting it, could result in parents who continue to smoke losing custody or visitation rights they may have previously enjoyed.”

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Don’t think for a moment that it can’t happen. A User Manual for CPS caseworkers printed by the U.S. Department of Health and Human Services in 2006 specifically ranks “second-hand smoke, especially for children with asthma or other lung problems” as among potential “hazards” in the home, listing second hand smoke as among environmental hazards such as loaded guns in the home within the reach of children.

“The physical problems associated with neglect may start even before an infant is born, such as when the mother has had little or no prenatal care or smoked during pregnancy,” the Manual continues on to say. In the same paragraph, the Manual explains: “exposure to indoor and outdoor air pollutants, such as ozone, particulate matter, and sulphur dioxide, can cause the development of asthma or increase the frequency or severity of asthma attacks,” suggesting that parents may be held as culpable for failure to protect their children against pollutants that fall within the purview of the Environmental Protection Agency.

BANZHAF AND THE CPS OBESITY CRUSADE

Returning to Banzhaf, he is every bit as influential as he is controversial. An editorial in the September 20, 2004, edition of Washington Times explains how lawsuits against tobacco companies eventually led to calls against the parents of obese children, considering them as “fair game” in custody decisions:

“Movements start with legal action,” Mr. Banzhaf said, noting that the obesity lawsuit drive had achieved more in the last few years than the first tobacco lawsuits. The tobacco suits eventually resulted in four major tobacco companies reaching a historic $246 billion legal settlement in 1998, three decades after the first suits were filed.

“We must remember that the anti-tobacco movement did not just sue the tobacco companies. We sued lots of people,” Mr. Banzhaf said. He advised his colleagues to consider suits against doctors who do not warn obese patients about their health risks.

Even parents of morbidly obese children, where it could be shown the parents did not try to protect their children from related health risks, could be fair game in custody disputes, he said. Those suits would follow the lead of ones where parents who smoked around their children lost partial or full custody.

To be sure, Banzhaf’s broad-sweeping efforts to rightsize the American waistline were met with some measure of thoughtful resistance. Enter the Center for Consumer Freedom, which described the second annual Public Health Advocacy Institute conference, during which a handout entitled Obesity Policy Report was passed around:

It wouldn’t have been a conference on obesity lawsuits without John “Sue the Bastards” Banzhaf. At last weekend’s gathering, he claimed credit for starting the movement while talking to a reporter in 2002. “We’re doing well and we’re ahead of schedule,” he said. “When lawyers see how lucrative these are they will all join on.”

In addition to the usual old-hat defendants – restaurants and large food companies – Banzhaf offered suggestions for several other targets. In true ambulance-chasing fashion, he insisted: “Let’s sue some doctors.” He also urged lawsuits against parents of obese children, saying “go after parents with TVs in their [kids’] rooms.”

This much is certain, if you give Child Protective Services a reason – any reason – to intervene in a family’s life, it will find that reason and use it to its time-moment accounting and revenue-maximizing advantage.

A source no more radical than TIME Magazine printed an article entitled “An Obese Boy Is Placed in Foster Care. Can It Help?” in its Health and Family section in November of 2011.

“An 8-year-old boy in Cleveland Heights, Ohio, was taken from his family and placed in foster care last month because his mother failed to control the third-grader’s ballooning weight. The county’s family services department considered it a form of medical neglect,” the magazine reported.

Lest you think that may be an unusual case of Child Protective Services overstepping its mandate, in a related article in TIME entitled “Should Parents Lose Custody of Their Extremely Obese Kids?” Bonnie Rochman cites Harvard pediatrics professor and “obesity expert” David Ludwig in what she describes as a “controversial commentary” published in none other than the Journal of the American Medical Association.

“One way to manage the nation’s childhood obesity crisis might be to take the most severely overweight kids away from their parents, argues Harvard pediatrics professor and obesity expert David Ludwig,” Rochman writes.

“The recommendation in the Journal of the American Medical Association to consign extremely obese kids facing life-threatening complications to foster care is eye-popping, but it’s already transpired in a handful of U.S. cases,” she explains.

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The JAMA article – co-authored by Lindsey Murtagh, JD, MPH – explains that, “Even relatively mild parenting deficiencies, such as having excess junk food in the house or failing to model a physically active lifestyle, may contribute to a child’s weight problem.”

The commentary, boldly entitled “State Intervention in Life-Threatening Childhood Obesity” specifically suggests that state intervention is warranted for obese children just as it is considered appropriate for the state to intervene is so-called “failure to thrive” cases.

“In severe instances of childhood obesity, removal from the home may be justifiable, from a legal standpoint, because of imminent health risks and the parents’ chronic failure to address medical problems,” wrote Ludwig and Murtagh.

By July 2011, ABC News writers Dan Harris and Mikaela Conley reported that the topic “has quickly generated controversy, and the majority of experts contacted by ABC News disagreed with Ludwig and Murtagh’s ideas.”

They explain that “Dr. David Katz, founder of the Yale Prevention Center, said that there was no evidence that the state would do a better job of feeding children than their parents.”

They explained also that “Dr. David Orentlicher, co-director of Hall Center for Law and Health at Indiana University of School Law, also disagreed, saying that based on past instances, child protective service agencies might be far too quick to place overweight children in foster care.”

Harris and Conley continue on to illustrate just how the idea the overweight children needed coercive intervention caught on among child welfare agencies with a case drawn from real life, rather than the halls of academia:

A family in Albuquerque, N.M., disagreed with the idea, based not on any medical expertise but on a painful personal experience that they say tore the family apart more than a decade ago.

In a case that shocked many people across the country, 3-year-old Anamarie Regino, weighing 90 pounds, was taken from her outraged parents by government officials and placed in foster care.

“Literally, it was two months of hell. It seemed like the longest two months of my life,” mother Adela Martinez said.

As it turned out, it was two unnecessary months of hell. Anamarie didn’t improve at all in foster care, and she was returned to her parents. The young girl was later diagnosed with a genetic predisposition.

“They say it’s for the well-being of the child, but it did more damage that any money or therapy could ever to do to fix it,” Martinez said.

When told of the Regino case, Ludwig reportedly said, “Well, state intervention is no guarantee of a good outcome, but to do nothing is also not an answer.”

That was not the only case, as Marilisa Kinney Sachteleben explained in an article on Yahoo! News published in November 2011, and entitled “Obese Ohio Child Taken from Parents, Placed in Foster Care.” As Sachteleben explains it:

An obese 8-year-old boy from Cleveland Heights, Ohio, has been removed from his parents’ home for medical neglect, according to The Cleveland Plain Dealer. The child weighs more than 200 pounds; his mother has been charged with endangering her son’s health. This is Ohio’s first case of child protective services removing a child for being overweight.

“The practice of removing obese children from their homes and placing them in foster came to the forefront in July when a Harvard University doctor recommended it,” the article explains citing Dr. Ludwig. The article also encapsulates the Regina case:

A decade ago, Anamarie Regino was a 90-pound 3-year-old. She was taken from her family. Now 14, Regino told The Cleveland Plain Dealer it did no good and caused her and her parents severe emotional problems. She was found to have a genetic predisposition to weight problem. The foster parents of the Cleveland Heights boy are having trouble getting his weight down, too.

Given the difficulties the foster parents had in both of these casers, it would appear that child protective services took the wrong children.

In commenting on the case of the 8-year-old boy from Cleveland Heights, nationally syndicated columnist Ruben Navarrette Jr. asked rhetorically on CNN: “Is child obesity a form of child neglect?” In answering his own question,

Of course not. That’s ridiculous. But, it seems, the ridiculous is now standard operating procedure in the upside down world of the Department of Children and Family Services of Cuyahoga County in Ohio. In a case making headlines around the country, the agency recently decided that a Cleveland third grader should be taken from his mother and placed in foster care.

Navarrette continued on to note: “The people who run these social service agencies always claim that they’re acting in the best interests of the child. Yet, in this case, that could be a tough sell. In the absence of actual abuse, taking a child away from his mother and placing him in foster care is not in anyone’s best interests – not the child, not the mother and not the rest of society which will have to deal with the emotional fallout for years to come.”

By the time ABC News, TIME Magazine, Yahoo! News, and CNN reported on such cases, it was already an old story. Armed with its mandate – to protect overweight children from the evils of their junk food infested homes – CPS had wasted no time in “rescuing” many overweight children into state care. Ron Bamett reported in the July 23, 2009, edition of USA Today that: “State courts in Texas, Pennsylvania, New York, New Mexico, Indiana and California have grappled with the question in recent years.”

That publicity wasn’t quite enough to derail the expansion of childhood obesity as a child protective matter. Shauneen M. Garrahan and Andrew W. Eichner produced an article by the name of “Tipping the Scale: A Place for Childhood Obesity in the Evolving Legal Framework of Child Abuse and Neglect” that was actually published by the Yale Journal of Health Policy, Law, and Ethics, in which they assert:

Because parents directly influence their children’s eating habits and weight in a variety of ways, the legal system must recognize parental accountability for childhood obesity. One such influence involves the type of food that parents choose to have in the house. Not surprisingly, children are more likely to be obese if they live in a household where prepared food items high in fat and sodium are frequently served.29 One study also showed that between 1977 and 1998, parents substantially increased the size of portions they served to their children. 30 Generally speaking, today’s children consume approximately 350 more calories per day than children did in the 1970s.3 1 This problematic trend increases the risk of childhood obesity.

They continue on to explain that: “The inactivity of parents may also negatively inspire children to behave in unproductive and unhealthy ways by influencing children to choose a sedentary lifestyle early on. Because these parental factors are controllable, the courts should carefully consider these influences when allocating responsibility in cases of morbid childhood obesity.”

In fairness to the authors, Garrahan and Eichner encourage child protection agencies to only intervene in cases of morbid obesity, and they seek to explain the differences between childhood obesity that is attributable to metabolism or other factors outside of parental control, as distinguished against those that are within the realm of parental control.

But isn’t making that distinction asking too much of caseworkers who have historically taken far-too-many children out of safe and loving homes while leaving children like Elisa Izquierdo, Phoenix Sinclair, and Peter Connelly behind?

In the November 2013 edition of Trauma, Violence, & Abuse, Deborah J. Jones and colleagues present a thought-provoking article entitled Should Child Obesity be an Issue for Child Protective Services? A Call for More Research on this Critical Public Health Issue, in which they raise the issue of whther child protective services provides an appropriate model for the delivery of services concerning childhood obesity.

“The relatively slow progress toward the prevention and treatment of childhood obesity,” they explain, “has prompted leaders in both academic and practice sectors to advocate for what may be considered a radical intervention approach, to conceptualize extreme child obesity as an issue of child maltreatment.”

They note also that while the policy of having child protective services intervene in such cases is already being implemented in some states, “surprisingly little research has been conducted to inform policies or practices consistent with this recommendation,” concluding therefrom that more research in the area is needed. Relatively little data are currently available to support or refute the merits of CPS involvement, recommendations for future research that would better inform public policy and decision making regarding this and other intervention strategies, they explain.

In the final analysis, relatively little data serves to support the safety, effectiveness, or efficiency of any CPS interventions; yet the evidence continues to mount daily regarding just how deadly they often turn out to be.1

It was, after all, child protective services that rescued Alexandria Hill from her home on grounds no more substatial but that her parents smoked pot to unwind as she slept. Young Alexandria died in foster care, and her foster mother was eventually charged with capital murder. The caseworkers that rescued her, however, were not charged as accesories.


1. For a discussion of this phenomenon, see my article New Study: Child Protective Services as Ineffective as it is Deadly, October 7, 2010 (examining two studies that showed no improvements in family functioning or child safety following CPS interventions in the context of several recent child deaths in foster care).

Related reading

PRLog Press Release, “Smokers Could Lose Child Custody Following New Report: Third-Hand Tobacco Smoke Deadly,” John Banzhaf, (February 12, 2014).

Jennifer Jordan, “Protective Supervision Lifted for Obese Child,” FOX 8 News, Cleveland, (May 10, 2012).

Lindsey Murtagh, JD, MPH; David S. Ludwig, MD, PhD, “State Intervention in Life-Threatening Childhood Obesity,” (2011) Journal of the American Medical Association, Vol 306, No. 2. pp 206-207.

Editorial, “Anti-obesity group mulls swell in suits,” Washington Times, (September 19, 2004).

Editorial, “Lawyers see obese U.S. ripe for fat lawsuits,” (September 20, 2004).

Ron Bamett, “S.C. Case Looks on Child Obesity as Child Abuse. But Is It?” USA Today, (July 23, 2009).

Rachel Dissell, “County places obese Cleveland Heights child in foster care,” The Plain Dealer, (November 26, 2011).

Kim Carollo, Is Childhood Obesity a Sign of Child Abuse? ABC News, (August 23, 2010).

Marilisa Kinney Sachteleben, “Obese Ohio Child Taken from Parents, Placed in Foster Care,” Yahoo! News, (November 28, 2011).

Ruben Navarrette Jr., “Taking obese child from mom is wrong,” CNN.com, (December 2, 2011).

Shauneen M.Garrahan and Andrew W. Eichner (2012) “Tipping the Scale: A Place for Childhood Obesity in the Evolving Legal Framework of Child Abuse and Neglect,” Yale Journal of Health Policy, Law, and Ethics: Vol. 12: Iss. 2, Article 3.

Martin Binks, PhD, “The Debate Surrounding Removal of Severely Obese Children from the Home: An Editorial Commentary,” The Obesity Society, (August 2011).

Kris Betts, “Father of foster child who died speaks to KVUE,” KVUE ABC News, (August 1, 2013).