|Posted on June 11, 2012 at 11:00 AM||comments (110)|
“The right of a family to remain intact is constitutionally protected.” 
A mother, S., gave birth to twins in October 2006, one male and one female. The male, Baby L., died suddenly two months later. Findings at autopsy revealed a skull fracture which was already in the process of healing (suggesting that is an older injury) and a brain injury. It was also discovered that the infant had liver disease and a blood coagulation problem that was not known until postmortem. Baby L had been seen by his pediatrician, was examined and vaccinated three and one half days previously. The surviving twin was removed from custody. S. gave birth again in May 2011 and lost custody of her newborn after six hours alone with her. The claim was negligence due to her refusal to agree that Baby L. had been abused by the birth father, her mother or any other “suspect” in the alleged homicide. There were never any criminal charges filed, but to date, CPS refuses to return S.’s children. S. has found doctors who believe that Baby L. died of the same underlying medical condition that S.’s oldest child suffers from: rickets, not inflicted trauma. Her next appearance has been delayed until May 2012. That makes over five years of waiting to regain custody of her daughters. There was no investigation in May 2010, only action taken by CPS agents six hours after her youngest daughter was born.  Until the hearing, she has no way of proving there was no abuse. Meanwhile, parental rights for both parents have been terminated for the surviving twin, her firstborn daughter – because they maintain their innocence. Her oldest daughter is scheduled to be adopted by the paternal grandmother in March 2012 – despite the paternal grandmother’s documented history of child abuse, for which a waiver was obtained by DCF.)  S. is currently awaiting her hearing to see if she’ll regain custody of her youngest daughter. [See endnote for update * Note 1]
A medical diagnosis that remains controversial forty years after it was hypothesized does not constitute a reasonable basis to remove children from the homes of their parents. Diagnoses like these involve complex medical issues that highly-educated practitioners of specialized fields of medicine and engineering are still debating. The Juvenile Court room is not the proper forum to argue the merits of a medical diagnosis to be ruled upon by one judge when those educated in the applicable scientific fields cannot conclusively determine this through their research. To remove custody of children from their parents based on supposition and not “clear and convincing evidence” is unconstitutional. 
The agency filing a custody motion has a duty to make “reasonable efforts to prevent the removal of the child…, to eliminate the continued removal of the child…, or make it possible for the child to return safely home.”  After five years, at what point is CPS attempting to follow the letter of the law in the above case? Even worse, the above case is not an isolated one.
Mother D. gave birth in February 2011. Her daughter was born in the breech position and five weeks later suffered seizures and died. She was diagnosed with Shaken Baby Syndrome at Akron Children’s Hospital. D.’s fiancé was taken into custody where he is still waiting his criminal trial to begin in May 2012. Her other children were removed from her custody. Her older children were returned to her mother while she is waiting for her custody hearing. Any signs that she supports her as-yet not convicted fiancé earn her threats from CPS that they will remove custody from any of her family members based on the belief they are not safe from harm (even though the accused is in jail).  The conclusion already seems drawn in D.’s case when the conviction is not made and regardless the medical diagnosis is potentially unsound. [See endnote for update *** Note 3].
WebMD lists Shaken Baby Syndrome as “a form of child abuse” involving a brain injury.  NCBI says it’s characterized by “intracranial and intraocular hemorrhages with no evident external trauma.”  There are dozens of etiological reasons for a closed-head injury resulting in the listed hemorrhages without a caretaker necessarily having abused the baby, and are discussed in what is touted as the “gold standard” in medical books on neonatal neurology.  “Pediatric Emergency Care” is a medical journal that published a case study of a 9-month-old with the required injuries, but after differential testing, it was discovered the child had a rare condition called glutaric aciduria type 1 (GA-1).  If the Juvenile lawyer appointed to a case doesn’t know this medical background, his case will be in jeopardy and without medical testimony refuting the diagnosis, there is little opportunity for parents to regain custody. Attorney Mark Freeman in Pennsylvania won his latest clients’ case and has issued a counter Complaint suing the Children’s Hospital and multiple other participants in that original custody suit for violating his clients’ civil rights by falsely attributing their baby’s stroke and rickets to child abuse.  [See endnote for update ** Note 2].
Shaken Baby Syndrome is not the only medical diagnosis of child abuse that is widely contested with its inability to be conclusively proven in the medical and legal communities, and is a prevalent diagnosis used to remove children from homes. WebMD defines Munchausen Syndrome by Proxy (MSbP) as a “mental health problem in which a caregiver makes up or causes an illness or injury” in order to obtain attention from doctors, nurses or others in their community.  NCBI concurs that it is a fabrication of symptoms of a disease by other than the patient, which is child abuse. 
M.’s daughter was also a patient from Akron Children’s Hospital and was diagnosed with depression among many other conditions during M.’s separation from her daughter’s biological father. Eleven years later, after having sole custody for that time (but fighting custody battles off and on), and in March 2009, M. was diagnosed by her daughter’s pediatrician as having MSbP. This pediatrician did not meet or even talk to M. and yet made a diagnosis outside of his scope of expertise causing M. to lose custody, which was given to the father. Even though the judge had struck the term MSbP the court proceedings have not ended because CPS agents still believe that M. had influenced her daughter into creating illness – an exact reason has not been explained. M.’s daughter is now 15 years old and has always asserted she wants to return to live with M. 
These types of long court battles present multitudes of problems for the families involved, notwithstanding the financial burden or the mental toll of separation. If permanent custody is lost, a parent rarely receives relief through habeas corpus or other such appeals. A landmark Ohio Supreme Court decision from 2006 set precedent in a case where CPS couldn’t find an adoptive home for the child after years had passed, but the mother was told, even if she proved herself to be a fit mother, she had no procedural rights to petition for custody.  It is certainly not the Juvenile Court’s responsibility to ensure doctors perform all due standard of care or know if they deviated from their expertise; however, it is its duty to ensure laws are followed and that Constitutional rights are not superseded in its effort to protect children who are legitimately abused by separating them from those falsely accused of child abuse. Moreover, this can cause the abuse of the child to have happened at the very hands of those well-intentioned, yet misguided agents who were seeking to prevent it by virtue of separating the familial unit.
A medical diagnosis that remains controversial forty years after it was hypothesized does not constitute a reasonable basis to remove children from the homes of their parents.
* Note 1: On May 18, 2012, this author was notified that S. has been given a reunification plan in full by her state’s DCF, but her other daughter was officially adopted in April 2012.
** Note 2: In April 2012, Judge Kane granted a Rule 12 Motion to Dismiss for three of the parties listed as defendants in the law suit. The plaintiffs were granted leave to file an amended complaint, which they proceeded to do. Likely additional dismissal motions are being written or filed as I write this blog.
*** Note 3: A trial is set for August 2012.
Research Sources Cited in Paper:
 Stanley v. Illinois, 405 U.S. 645 (1972).
 Interviews with mother S. from February 12, 2012 - May 2012.
 Ohio Rev. Code 2151.414(B)(1)(a).
 Ohio Rev. Code 2151.419(A)(1).
 Interview with mother D. on January 13, 2012.
 WebMD (2007). Health and Baby: Shaken Baby Syndrome – Topic Overview What is Shaken Baby Syndrome? Retrieved February 7, 2012 from http://www.webmd.com/parenting/baby/tc/shaken-baby-syndrome-topic-overview.
 NCBI (2003). Shaken Baby Syndrome. Retrieved February 7, 2012, from http://www.ncbi.nlm.nih.gov/mesh?term=shaken%20baby%20syndrome.
 Volpe, J.J. (2008). Volpe’s Neurology of the Newborn. Elsevier Health Sciences. 5th Ed.
 Soden, S.E., Dasouki, M.J., and Walsh, I.R. (2002). A 9-Month-Old Baby with Subdural Hematomas, Retinal Hemorrhages, and Developmental Delay. Pediatric Emergency Care. Vol. 18 No. 1.
 Billups, et al. v. Penn State Milton S. Hershey Med. Ctr et al., 2012 U.S. Dist. LEXIS 56414 (M.D. Pa. Apr. 23, 2012). [Document 59, Amended Complaint]
 WebMD (2007). Mental Health: Munchausen Syndrome by Proxy – Topic Overview What is Munchausen Syndrome by Proxy? Retrieved February 7, 2012 from http://www.webmd.com/mental-health/tc/munchausen-syndrome-by-proxy-topic-overview?
 NCBI (1992). Munchausen Syndrome by Proxy. Retrieved February 7, 2012, from http://www.ncbi.nlm.nih.gov/mesh?term=munchausen%20syndrome%20by%20proxy
 Interview with mother M. on February 7, 2012.
 McBride (2006), 110 Ohio St. 3d 19. (Ohio Supreme Court). Summary retrieved February 7, 2012, from http://www.sconet.state.oh.us/PIO/summaries/2006/0719/041917.asp.