Fighting CPS Drug Tests: Why a Positive MJ Test Isn’t the End of the World Anymore


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You didn’t know your rights, and you took a CPS drug test during a CPS (Child Protective Services) investigation. The investigator is telling you that you tested positive for marijuana and is threatening to take your kids away from you. Under a new Texas Law, CPS now has more restrictions when it comes to marijuana use, and you need to know how to stop them in their tracks.

First and foremost, if you haven’t yet taken a CPS drug test and you found this blog while trying to determine if you HAVE to submit to their test, go check out our Fighting CPS Interrogations blog first. If you already took the test, or are considering submitting to the test, then you need to know your rights from this point forward.

Why does CPS ask for drug testing?

At the beginning of every CPS Investigation, CPS loves asking parents to go and take drug tests; whether there are allegations of drug use or not. This is one of their methods of fishing for enough information in order to take kids out of your home and put them into state-run foster care. Thousands of parents, and caregivers, give up their right to be free from warrantless searches and consent to these tests every year.

You might wonder, “Why do these parents submit to these tests?” Some parents think that they HAVE to submit to the test, while many others think that they have nothing to hide. Unfortunately, not all drug tests are created equal, which sometimes lead to false positive results.

CPS has a history of removing children from their homes, placing them in foster care, and seeking the termination of parental rights due to parents’ one-time positive drug test. Scary right?

Under a new law passed in 2021, it is now illegal for CPS to remove children from their homes based on evidence that that parent tested positive for marijuana. What that means is that CPS can’t take possession of a child based solely on a positive drug test for marijuana.

However, that word “solely” leaves some significant wiggle room. Under the new law, if a parent tests positive for marijuana, CPS cannot remove the children unless the department “has evidence that the parent’s use of marijuana has caused significant impairment to the child’s physical or mental health or emotional development.” That means they’ll have to do a LOT more fishing!

—See Tex. Fam. Code § 262.116(a)(7) – LIMITS ON REMOVAL

Should you take the CPS drug test?

That is the million-dollar question, isn’t it? I can’t answer that for you because that is your decision to make. However, let me ask you these questions and then you can decide for yourself whether or not you should take that test.

  1. Have you used any controlled substances within the last 180 days?
    • Depending on the test required, controlled substances may be detected as far back as 6 months.
  2. If you have taken a controlled substance, was it legal marijuana?
    • Marijuana is legal in many states these days, but not Texas. The test doesn’t reveal what state you were in when you used it.
  3. Are you 100% positive that you only consumed marijuana?
    • Street drugs are notoriously laced with other addictive substances to fuel the market. If you didn’t grow it yourself, how positive are you that it hasn’t been contaminated?
  4. Have you taken any prescribed medications, or over the counter medications, within the past 180 days?
  5. How confident are you in the integrity of the testing facility that CPS chose for you to take a test at?
    • In casinos, the House always wins. I don’t have any evidence that samples at CPS chosen labs have been tampered with, but I have personally handled several cases where my client took a test for CPS at their lab, and then took a test at a lab chosen by me, but only tested positive at the CPS lab.

Considerations in drug testing

In short, if you’re considering taking a CPS drug test, ask yourself, “What do I have to prove?” You don’t have to prove to the government that you have not abused or neglected your children in order to remain a parent. Instead, the government has to prove that you have abused or endangered them if CPS wants to remove your children or terminate your parental rights.

Next, ask yourself, “What do I stand to gain?” If you take a CPS drug test, and it comes back negative, do you think that CPS will magically disappear and leave you alone? Chances are that a negative drug test will not satisfy an aggressive CPS Investigator and you’ll still be asked to permit them to search your home, submit to lengthy interrogations, and undergo “voluntary” services to make sure that you don’t use drugs in the future.

Finally, ask yourself, “What do I stand to lose?” If your CPS drug test result comes back positive for an illegal drug, even if it is a false positive, then CPS now has additional evidence to use against you when they file a Petition to remove the children and terminate your parental rights. Do you have the money to hire an expert witness to come to Court and testify about the probabilities of false positive drug tests? How long will your children sit in a foster home while you fight to prove that the test you voluntarily took was a false positive?

What would I do?

As in, would I take a CPS drug test? First, I know that I haven’t given you any specific advice yet, but that is by design. I’m not here to provide you with any legal advice because every situation is different. If you want specific advice, then you need to talk to an attorney that can evaluate your situation. However, I can tell you about MY situation.

As a parent, here is how I would deal with an Investigator asking me to submit to a CPS drug test. Mind you, I don’t use drugs, I don’t drink, I don’t take any medications, and I don’t routinely eat any of the foods that sometimes cause false positives. Even with all of that in mind, I would STILL refuse to submit to a CPS drug test. It’s not that I have anything to hide, I just wholeheartedly embrace my 4th Amendment Right to be free from invasive searches.

So, make your own decisions about submitting to a CPS drug test, but be prepared to live with the consequences of whatever decision you make.

–Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC – Family Law Division

1101 Broadway, Lubbock, Texas, 79401

Tel: (806) 702-4852 | Fax: (800) 985-9479

[email protected]

Photo by Jeremy Bishop on Unsplash