Prosecutor opposes bill to help moms whose babies are born with drugs in system

CHICAGO — A proposal to change the way Illinois handles new mothers with drug-use disorders is meant to prioritize treatment, but it has prompted “grave concerns” from a prosecutor who oversaw one infamous case.

A bill in Springfield would end the requirement that prosecutors be notified when a baby is born with controlled substances in his or her system and would no longer necessarily consider that evidence of child abuse.

The hope is that by taking away the threat of losing custody of a baby, mothers would be more likely to seek treatment.

The initiative was prompted by a finding that the leading cause of death in Illinois among expectant or new mothers is drug use. Almost one-third of the 263 such mothers who died in 2018 to 2020 died of substance use, the state Department of Public Health reported.

The proposed change in the law would create a task force to develop a plan for helping infants and mothers exposed to illicit drugs during pregnancy. These family recovery plans would include medical care, recovery support and referrals to community services for the child and caregiver.

McHenry County State’s Attorney Patrick Kenneally, a Republican, objected to the proposal, saying it would leave such cases to the Department of Children and Family Services, or DCFS, which failed in one such high-profile case, that of AJ Freund.

When AJ was born with heroin in his system and track marks on his mother’s arms in 2013, Kenneally was notified by law and went to court to have the infant taken into protective custody and placed with a relative.

That provided AJ with the only normalcy in his life, Kenneally said, before his parents, JoAnn Cunningham and Andrew Freund, underwent counseling and treatment with the anti-cravings drug Suboxone, and won custody back. In 2019, however, after Cunningham abused heroin and her son repeatedly, AJ was found dead of trauma, buried in a shallow grave.

Cunningham and Freund pleaded guilty in connection with their son’s death and are in prison.

The DCFS investigator in AJ’s case, Carlos Acosta, was convicted of endangering the life or health of a child for failing to fully investigate.

Studies show that substance abuse is a primary cause of child abuse and neglect. Kenneally said nothing now prevents mothers from seeking treatment before birth without penalty.

“The basis (of the proposed change), of course, is not science,” Kenneally said in a statement, “but political pieties that forbid ‘stigmatizing’ the mother, who though severely endangering her child by using drugs during pregnancy, is merely a faultless victim afflicted with the ‘disease’ of substance abuse.”

In response, the Illinois State Medical Society, which supports the measure, called such claims “baseless” and “absurd.”

Under the proposal, DCFS still would be notified and required to investigate, provide services, and when necessary, notify prosecutors.

State Sen. Cristina Castro, a Democrat from Elgin, issued a statement that she was “appalled” to see Kenneally “blame vulnerable new mothers.”

“Rather than making cruel and destructive comments about women struggling with addiction,” Castro said, “I’m working on legislation to keep women and children in Illinois alive, safe and healthy.”

The measure also is supported by the American College of Obstetricians and Gynecologists of Illinois, the Illinois chapter of the American Academy of Pediatrics and the American Federation of State, County and Municipal Employees.

Others in the justice system also called for the change.

Kane County State’s Attorney Jamie Mosser, a Democrat, said DCFS is in the best position to investigate such cases alongside law enforcement, and she believes new agency Director Heidi Muller will address deficiencies in the agency.

In Cook County, the office of Public Guardian Charles Golbert legally represents children in abuse or neglect cases.

“The current law mostly affects poor minority families, it’s just not necessary,” Golbert said. “There’s really not a need to break up the family and move the child to foster care, much less criminally prosecute the parents.”

The problem has grown with the general increase in opioid use. In 2018, an estimated 8.5% of pregnant women ages 15-44 used illicit substances in the past month, reflecting a 70% increase from 2010 levels, the Center for Behavioral Health Statistics and Quality reported.

Advocates cited several studies whose authors concluded that punitive prenatal substance use policies discourage women from getting treatment, and don’t reduce cases of infants born with drugs in their bodies.

But some studies found no effect, and it’s unclear to what extent such studies apply to Illinois, which does not criminalize drug use during pregnancy, and where substance abuse by itself is not grounds to take custody of a baby.

And the studies cited generally didn’t address the outcomes of children after birth, which Kenneally said the prosecutor notification is supposed to address.

Kelly Hubbard, policy and advocacy director at Everthrive Illinois, a nonprofit group that works to improve maternal and infant health, said that, unlike in AJ’s case, some families are able to overcome substance abuse.

“We have a number of families that our community engagement team has worked with to get treatment,” she said. “The families were able to stay together and go on to have amazing, fruitful lives.”