Can Mississippi CPS take a newborn into custody if the baby tests positive for meth or cocaine and is suffering withdrawals, even before the baby goes home?

Plain-English summary

Chancellor Margaret Alfonso asked five questions about Section 43-21-303, the statute that governs taking a child into custody without a court order. Specifically:

1. Can CPS take a drug-positive newborn (meth) suffering withdrawal harm into custody when there is no reasonable alternative?
2. Same question for cocaine.
3. Same question for a child of tender years (not a newborn) testing positive for meth, cocaine, or a similar substance other than marijuana.
4. Does Section 43-21-303(b) require sending a drug-positive newborn home with the offending parent to suffer harm before CPS can take custody?
5. Does Section 43-21-303 or any other statute prohibit a medical provider from notifying law enforcement of a newborn or baby testing positive for a controlled substance?

The AG's framework: Section 43-21-303 lets a law enforcement officer, CPS agent, or DHS agent take a child into immediate custody if all three conditions are met:

• (i) Probable cause to believe the child is in immediate danger of personal harm. The statute carves out specific limits: probable cause cannot be based solely on a positive marijuana test of a newborn or parent, or solely on a parent's medical cannabis cardholder status. Probable cause for unlawful use of any other controlled substance may be based on a parent's positive drug test or a newborn's positive drug screen "only if the child is in danger of a significant risk of harm or the parent is unable to provide proper care or supervision of the child because of the unlawful use and there is no reasonable alternative to custody."
• (ii) Probable cause that immediate custody is necessary as set forth in Section 43-21-301(3) (child within court jurisdiction; custody necessary; no reasonable alternative).
• (iii) No reasonable alternative to custody.

Under the statute's own terms, for non-marijuana controlled substances a newborn's positive drug screen may support probable cause "only if the child is in danger of a significant risk of harm or the parent is unable to provide proper care or supervision of the child because of the unlawful use and there is no reasonable alternative to custody."

But the AG could not give the chancellor a yes-or-no on each scenario. Section 7-5-25 limits the AG to prospective questions of state law and bars factual determinations. Whether the statutory conditions (including probable cause) are met in a specific case is a fact question. The AG cited Magyar v. Shiers (Miss. Ct. App. May 13, 2025), quoting Benjamin v. Hooper Electronic Supply Co., 568 So. 2d 1182, 1190 (Miss. 1990): "'[p]robable cause is determined from the facts apparent to the observer . . . .' When the facts are in dispute, the existence or absence of probable cause is a question for the fact-finder."

For that reason, the AG placed questions 1 through 4, including question 4 (whether the statute requires sending a drug-positive newborn home before CPS can act), outside the scope of the opinion: "because questions 1-4 require factual determinations, they are outside the scope of this opinion." The opinion did not itself answer those four questions.

For question 5, the AG did give an answer: Section 43-21-303 "does not address whether a medical provider may or may not notify law enforcement" of a positive test "and therefore does not prohibit such action." The AG paired that with a reference to Section 43-21-353, which requires mandatory reporting to CPS by anyone "having reasonable cause to suspect that a child is a neglected child [or] an abused child," and noted that federal law (it named HIPAA) is outside the scope of a state-law AG opinion.

What this means for you

For chancellors, youth court judges, CPS caseworkers, and law enforcement

The opinion lays out the statutory conditions in § 43-21-303 for taking a child into immediate custody without an order: (i) probable cause that the child is in immediate danger of personal harm; (ii) probable cause that immediate custody is necessary as set forth in § 43-21-301(3); and (iii) no reasonable alternative to custody. For controlled substances other than marijuana, the statute lets probable cause rest on a newborn's positive drug screen "only if the child is in danger of a significant risk of harm or the parent is unable to provide proper care or supervision of the child because of the unlawful use and there is no reasonable alternative to custody." The opinion stresses that whether those conditions are met "is determined on a case-by-case basis based on the relevant facts," and that under § 7-5-25 the AG cannot make that factual call; it declined questions 1 through 4 for that reason.

For marijuana, the statute is explicit that probable cause "shall not be based solely upon a positive drug test of a newborn or parent for marijuana or solely upon the status of a parent as a cardholder under the Mississippi Medical Cannabis Act," though it "may be based upon an evidence-based finding of harm to the child or a parent's inability to provide for the care and supervision of the child due to the parent's use of marijuana."

For medical providers and hospital social workers

On question 5, the opinion holds that § 43-21-303 "does not address whether a medical provider may or may not notify law enforcement" of a positive test "and therefore does not prohibit such action." It also points to § 43-21-353, which requires reporting to CPS by any person "having reasonable cause to suspect that a child is a neglected child [or] an abused child." The opinion expressly does not address federal law, naming HIPAA as an example, and says questions of federal law are outside its scope.

For family law attorneys

The opinion confirms that whether the § 43-21-303 conditions are satisfied in a given case is a factual question for the fact-finder, citing Magyar v. Shiers and Benjamin v. Hooper Electronic Supply Co. It does not resolve any of the chancellor's specific scenarios.

Common questions

Can CPS take a drug-positive newborn without a court order?
Section 43-21-303 sets the conditions: probable cause of immediate danger of harm, probable cause that custody is necessary under § 43-21-301(3), and no reasonable alternative. The opinion did not apply those conditions to the chancellor's specific scenarios, treating whether they are met as a fact question outside the scope of an official opinion.

Does Mississippi require the newborn to suffer harm at home before CPS can act?
This was the chancellor's question 4. The AG placed it among questions 1-4 that "require factual determinations" and so are "outside the scope of this opinion." The opinion did not answer it. The statute's text authorizes a CPS agent or officer to take a child into "immediate custody" when its three conditions are met.

Is a positive drug test alone enough?
The statute says probable cause "shall not be based solely upon a positive drug test of a newborn or parent for marijuana" or solely on medical-cannabis cardholder status, though it may rest on "an evidence-based finding of harm" or a parent's inability to provide care. For other controlled substances, the statute allows probable cause based on a newborn's positive screen "only if" there is a significant risk of harm or parental inability to provide care and "no reasonable alternative to custody." The opinion did not decide whether any specific case meets those terms.

Can a hospital report a drug-positive newborn to law enforcement?
On question 5, the opinion holds that § 43-21-303 "does not address" and "does not prohibit" such notification. Section 43-21-353 separately requires reporting to CPS by a person with reasonable cause to suspect abuse or neglect.

What about HIPAA?
The opinion expressly does not address federal law, naming HIPAA as an example, and states the AG cannot opine on federal law.

What is the "no reasonable alternative" requirement?
It is the third condition for immediate custody under § 43-21-303(1)(b)(iii). The opinion does not list what would count as a reasonable alternative; whether one exists is part of the factual determination it left to the case.

Background and statutory framework

Section 43-21-303 governs taking a child into custody without an order. The relevant text:

(1) No child in a matter in which the youth court has original exclusive jurisdiction shall be taken into custody by any person without a custody order except that:

...

(b) A law enforcement officer or an agent of the Department of Child Protection Services or the Department of Human Services may take a child into immediate custody if:

(i) There is probable cause to believe that the child is in immediate danger of personal harm; however, probable cause shall not be based solely upon a positive drug test of a newborn or parent for marijuana or solely upon the status of a parent as a cardholder under the Mississippi Medical Cannabis Act, but a finding of probable cause may be based upon an evidence-based finding of harm to the child or a parent's inability to provide for the care and supervision of the child due to the parent's use of marijuana. Probable cause for unlawful use of any controlled substance, except as otherwise provided in this subparagraph (i) for marijuana, may be based: 1. upon a parent's positive drug test for unlawful use of a controlled substance only if the child is in danger of a significant risk of harm or the parent is unable to provide proper care or supervision of the child because of the unlawful use and there is no reasonable alternative to custody; and 2. upon a newborn's positive drug screen for a controlled substance that was used unlawfully only if the child is in danger of a significant risk of harm or the parent is unable to provide proper care or supervision of the child because of the unlawful use and there is no reasonable alternative to custody.

...

(ii) There is probable cause to believe that immediate custody is necessary as set forth in Section 43-21-301(3); and

(iii) There is no reasonable alternative to custody.

Section 43-21-301(3) provides for issuance of a custody order when probable cause exists that the child is within court jurisdiction, custody is necessary (significant risk of harm to child, danger from child to others, attendance in court, or unavailable parent/guardian/custodian), and no reasonable alternative exists.

Section 43-21-353 creates a mandatory-reporting duty for any person with reasonable cause to suspect a child is neglected or abused.

The probable-cause analysis is fact-specific. Magyar v. Shiers, No. 2023-CA-00682-COA, 2025 WL 1377559 at *7 (Miss. Ct. App. May 13, 2025), quoting Benjamin v. Hooper Electronic Supply Co., 568 So. 2d 1182, 1190 (Miss. 1990): probable cause is determined from facts apparent to the observer, and when the facts are in dispute the existence or absence of probable cause is a fact question.

Section 7-5-25 limits AG opinions to prospective questions of state law and bars factual determinations.

Citations

• Miss. Code Ann. § 43-21-301(3) (when custody order may issue)
• Miss. Code Ann. § 43-21-303 (taking custody without order)
• Miss. Code Ann. § 43-21-303(1) (general framework)
• Miss. Code Ann. § 43-21-303(1)(b)(i) (probable cause limits for marijuana; framework for other substances)
• Miss. Code Ann. § 43-21-353 (mandatory reporting to CPS for abuse or neglect)
• Miss. Code Ann. § 7-5-25 (scope of AG opinions)
• Magyar v. Shiers, No. 2023-CA-00682-COA, 2025 WL 1377559 (Miss. Ct. App. May 13, 2025) (probable cause as fact question)
• Benjamin v. Hooper Electronic Supply Co., Inc., 568 So. 2d 1182 (Miss. 1990) (probable cause framework)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/08/M.-Alfonso-August-25-2025-Mississippi-Code-Annotated-Section-43-21-303.pdf

Original opinion text

August 25, 2025
The Honorable Margaret Alfonso
Chancery Court Judge, Eighth District
Post Office Box 1446
Gulfport, Mississippi 39502
Re:

Mississippi Code Annotated Section 43-21-303

Dear Chancellor Alfonso:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented

1. If a newborn is positive for methamphetamine, and the baby has suffered harm (for example,
   has gone through withdrawals as a result or suffered some other harm), and there is no
   reasonable alternative to custody, does Mississippi Code Annotated Section 43-21-303
   prohibit Mississippi Child Protection Services ("CPS") from taking the child into custody?
2. If a newborn is positive for cocaine, and the baby has suffered harm (for example, has gone
   through withdrawals as a result or suffered some other harm), and there is no reasonable
   alternative to custody, does Section 43-21-303 prohibit CPS from taking the child into
   custody?
3. If a child of tender years tests positive for methamphetamine or cocaine or a like substance
   other than marijuana, and there is no reasonable alternative to custody, does Section 43-21-303 prohibit CPS from taking the child into custody?
4. Does Section 43-21-303(b) mean that a newborn testing positive for a controlled substance
   other than marijuana, which was used unlawfully, must be sent home with the offending parent
   to suffer harm before CPS can take the newborn into custody?
5. Does Section 43-21-303 or any other statute prohibit a medical provider from also notifying
   law enforcement of a newborn or baby testing positive for a controlled substance of any nature,
   marijuana or otherwise, for investigation of criminal conduct of the child's parent?

Brief Response

1. Section 43-21-303 sets forth certain conditions that must be met for CPS, or a law
   enforcement officer or the Department of Human Services ("DHS"), to take a child into
   immediate custody. Whether these conditions have been met is determined on a case-by-case
   basis based on the relevant facts. Under Section 7-5-25, our office may opine upon prospective
   questions of Mississippi law only; we may not opine upon questions of fact.
2. Please see response to question one.
3. Please see response to question one.
4. Please see response to question one.
5. Section 43-21-303 does not address whether a medical provider may or may not notify law
   enforcement of a newborn or baby testing positive for a controlled substance of any nature.
   Applicable Law and Discussion
   Section 43-21-303 pertains to taking a child into custody without a custody order. It states in
   pertinent part:

(1) No child in a matter in which the youth court has original exclusive jurisdiction
shall be taken into custody by any person without a custody order except that:

...

(b) A law enforcement officer or an agent of the Department of Child Protection
Services or the Department of Human Services may take a child into immediate
custody if:

(i) There is probable cause to believe that the child is in immediate
danger of personal harm; however, probable cause shall not be based
solely upon a positive drug test of a newborn or parent for marijuana or
solely upon the status of a parent as a cardholder under the Mississippi
Medical Cannabis Act, but a finding of probable cause may be based upon
an evidence-based finding of harm to the child or a parent's inability to
provide for the care and supervision of the child due to the parent's use of
marijuana. Probable cause for unlawful use of any controlled substance,
except as otherwise provided in this subparagraph (i) for marijuana, may be
based: 1. upon a parent's positive drug test for unlawful use of a controlled
substance only if the child is in danger of a significant risk of harm or the
parent is unable to provide proper care or supervision of the child because
of the unlawful use and there is no reasonable alternative to custody; and 2.
upon a newborn's positive drug screen for a controlled substance that was
used unlawfully only if the child is in danger of a significant risk of harm
or the parent is unable to provide proper care or supervision of the child
because of the unlawful use and there is no reasonable alternative to
custody.

...

(ii) There is probable cause to believe that immediate custody is
necessary as set forth in Section 43-21-301(3)[1]; and

(iii) There is no reasonable alternative to custody[.]

Miss. Code Ann. § 43-21-303(1) (emphasis added).
You ask several questions regarding Section 43-21-303 and CPS's ability to take a child into
custody when the child is born positive for a controlled substance other than marijuana or when a
child of tender years tests positive for the same. We first note that Section 43-21-303 only applies
to matters "in which the youth court has original exclusive jurisdiction" and there is no custody
order in place. This said, under such circumstances, Section 43-21-303 sets forth certain
conditions, emphasized in the quotation above, that must be met for CPS, or a law enforcement
officer or DHS, to take a child into immediate custody. Whether these conditions have been met
is determined on a case-by-case basis based on the relevant facts. See Miss. Code Ann. § 43-21-303(1)(b)(i) (regarding what probable cause may and may not be based upon); see also Magyar v.
Shiers, No. 2023-CA-00682-COA, 2025 WL 1377559 at *7 (Miss. Ct. App. May 13, 2025)
(relating to malicious prosecution but generally stating that "'[p]robable cause is determined from
the facts apparent to the observer . . . .' When the facts are in dispute, the existence or absence of
probable cause is a question for the fact-finder." (quoting Benjamin v. Hooper Electronic Supply
Co., Inc., 568 So. 2d 1182, 1190 (Miss. 1990))). Under Section 7-5-25, our office may opine upon
prospective questions of Mississippi law only; we cannot opine upon questions of fact.
Accordingly, because questions 1-4 require factual determinations, they are outside the scope of
this opinion.

Last, you ask if Section 43-21-303, or any other statute, prohibits a medical provider from also
notifying law enforcement of a newborn or baby testing positive for a controlled substance of any
nature, marijuana or otherwise, for investigation of criminal conduct of the child's parent. Section
43-21-303 does not address whether a medical provider may or may not notify law enforcement
of a newborn or baby testing positive for a controlled substance of any nature and therefore does
not prohibit such action. But see Miss. Code Ann. § 43-21-353 (addressing mandatory reporting
to CPS by any person "having reasonable cause to suspect that a child is a neglected child [or] an
abused child"). Finally, in accordance with Section 7-5-25, this office cannot opine on questions
of federal law. Therefore, this opinion does not address any potentially relevant federal law
considerations, such as, but not limited to, the Health Insurance Portability and Accountability
Act.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General

[1] Section 43-21-301(3)(a) provides for issuance of a custody order when:

it appears that there is probable cause to believe that:
(i) The child is within the jurisdiction of the court;
(ii) Custody is necessary because of any of the following reasons: the child is in danger of a
significant risk of harm, any person would be in danger of a significant risk of harm by the child, to
ensure the child's attendance in court at such time as required, or a parent, guardian or custodian is
not available to provide for the care and supervision of the child; and
(iii) There is no reasonable alternative to custody.