Pubdate: Sun, 29 Jun 2008
Source: Los Angeles Daily News (CA)
Copyright: 2008 Los Angeles Newspaper Group
Author: Troy Anderson


Toddler, Newborn Wrongly Torn From Family in Stepped-Up Screening of 
Pregnant Women

Awakened by late-night pounding and his doorbell ringing, Palmdale 
resident Jesus Bejarano found a social worker and two sheriff's 
deputies demanding he turn over his 20-month-old daughter, Kelly.

The social worker said Bejarano's 29-year-old wife, Cheila Herrera, 
had tested positive for amphetamines and PCP at Antelope Valley 
Hospital after giving birth to the couple's son a week earlier. Their 
son, Jesse, who was born prematurely and was still at the hospital, 
had already been placed in protective custody.

"It was terrible," Herrera said of the Feb. 14 ordeal. "It was pretty 
shocking to us. We didn't know what to do or say. We called my mom, 
saying, 'They are taking our baby away.'

"We started calling friends, but no one we know has gone through 
something like this. We were crying. We thought, oh my God, they took 
our baby."

Last month, the couple sued Los Angeles County government for 
unspecified damages, saying Herrera had never used drugs and the 
social worker ignored a battery of expensive tests that proved the 
initial drug-test results were wrong.

Experts say the case highlights widespread problems with California's 
system of drug-testing pregnant mothers, using urine-screening tests 
that produce false-positives up to 70 percent of the time, and 
inconsistent compliance by hospitals with a state law designed to 
regulate the process.

"The system sounds problematic ... because they are doing urine-only 
screens, and if they are not doing confirmation tests, they are going 
to have a lot of false positives," said Dr. Barry Lester, a national 
expert on drug-exposed babies and a professor of pediatrics and 
psychiatry at Brown University in Providence, R.I.

The Palmdale case comes two decades after concerns about "crack 
babies" swept tens of thousands of children into child-protective 
systems across the nation. Today, many medical experts say those 
concerns were overblown, with children showing no consistent birth 
defects or brain damage after being born to mothers who tested 
positive for crack use.

But experts say that in recent years a similar sweep has focused on 
"meth babies." Up to 80percent of mothers in Los Angeles County whose 
babies are taken tested positive for methamphetamine, a drug that 
experts say produces very high rates of false positives.

Removing the Child

In Los Angeles County, the number of infants removed from mothers who 
tested positive for drugs at hospitals nearly tripled from 209 in 
2003 to 568 last year, according to county data. California officials 
said they do not track similar figures statewide.

"Nine times out of 10, they remove the child," said Martha Molina 
Aviles, deputy to Supervisor Gloria Molina. "So we have been asking 
the (Department of Children and Family Services) a lot more questions 
about substance-abuse issues.

"How do they test? Are they randomly testing? What kind of tests are 
they doing? We certainly would support, whenever possible, to do 
confirmatory tests."

Under California legislation passed in 1990, it is against the law 
for a children's services agency to take a baby from a mother based 
solely on a single, positive drug test.

The law says there also must be proof the baby is at risk of abuse or 
neglect. And the law requires hospitals to conduct an assessment of 
the mother to determine if the baby is at risk before calling 
children's services authorities.

Known as the Presley Bill, the legislation came after a sudden 
increase in hospital reports to child welfare authorities of 
perinatal substance abuse.

But in a 1994 analysis on behalf of the state Department of Alcohol 
and Drug Programs, reviewers found widespread misunderstanding of the 
law, no mechanism to monitor implementation and a lack of funding for 
training or technical assistance for counties and hospitals.

"It's like the wild, wild West out here," said Beverly Hills attorney 
L. Wallace Pate, who is representing the Palmdale couple in their 
suit against the county.

"Nobody is following the law. The judges seem to be handling these 
positive toxicology screens like a drug war on women.

"They are telling moms, 'You tested positive for drugs, you are a bad 
mom, and we are going to take your kids away.' But under the law, the 
mom has to be abusive or negligent in the care of the baby." 
Principal Deputy County Counsel Rosemarie Belda said she couldn't 
comment on the Palmdale couple's lawsuit because it involves pending 

But officials at the Department of Children and Family Services and 
the Interagency Council on Child Abuse and Neglect said that, despite 
the state legislation, hospitals are not consistently filling out the 
required assessment forms.

"Some hospitals are not submitting these protocol forms at all," ICAN 
Executive Director Deanne Tilton Durfee said.

Issue of Liability

DCFS and hospital officials say physicians have discretion whether to 
request a second screening test for pregnant mothers who test 
positive for drugs.

But James Lott, executive vice president of the Hospital Association 
of Southern California, said most hospitals in the county are not 
performing the assessments before calling the DCFS because, if 
something adverse happens to the baby or the assessment is 
inadequate, the hospital could be held legally liable.

"Hospitals don't like being put in this position, and so many 
hospitals will consider the positive toxicology test all the 
screening they have to do," Lott said.

"And that will be, can be and often is the sole determinant in regard 
to referrals (to DCFS), and then they let the (child welfare) 
investigators sort the rest of it out.

"The hospitals are erring on the side of safety for the child. And 
they could be faulted for the screening process. The only objective, 
fact-based criteria the hospital has is the toxicology test. 
Screening can be determined to be subjective."

Lott also said he doesn't believe hospitals are violating the law.

"The law does not say you cannot make a referral without having done 
the screening," Lott said. "It says you should do the screening if 
you are going to make a referral.

"I know that sounds twisted, but anyone can make a referral without a 
screening, and it's up to the investigators to decide (whether to 
detain the baby)."

Lott also said many hospitals don't always have the laboratory 
expertise to conduct confirmatory tests. And while dependency court 
attorneys say they have been requesting more confirmatory tests 
recently, they acknowledge the practice is still relatively rare.

Dr. Charles Sophy, medical director of DCFS, said his agency is 
concerned that many hospitals aren't following the law or performing 
confirmatory drug tests.

"I think oftentimes hospitals want to err on the side of caution, and 
as mandated reporters they call us immediately," Sophy said. "And 
somewhere in the process either the confirmation doesn't get done or 
they never get to the next step (of assessing the risk of child mistreatment).

"But the more awareness we can raise, the better off we are in terms 
of keeping families together."

He also noted his agency is caught in a tough situation: It must 
decide whether to detain a baby at the hospital, but can't order 
confirmatory tests at that time because the mother is still under the 
care of her doctor.

"We can suggest they do a confirmatory test, but they don't always do 
it," Sophy said. "We don't want to inappropriately take children from 
their families. The disruption is not worth it. So we try to confirm 
as much as we can."

If the agency decides to take a baby into custody, after the mother 
is discharged from the hospital she often is required to undergo 
weekly drug testing that serves as a confirmatory process, Sophy 
said. "I'm concerned there are false positives sometimes, but usually 
there are more false negatives because of the games people play," Sophy said.

"Unless the test is actually witnessed at the hospital, certain games 
can be played to alter the tests. There are all kinds of ways people 
can change the results."

But child welfare experts, advocates for pregnant women and attorneys 
who handle such cases say problems with the system and testing 
methods are resulting in the unnecessary removal of babies from 
mothers across the nation.

"Thousands, if not hundreds of thousands, of families have been 
undermined by unnecessary child welfare investigations based on 
nothing more than a single, unconfirmed drug test," said Lynn M. 
Paltrow, executive director of National Advocates for Pregnant Women 
in New York City.

And Richard Wexler, executive director of the National Coalition for 
Child Protection Reform in Alexandria, Va., said similar systemic 
problems are found across the nation.

"While it may be harmful for a pregnant mother to use marijuana or 
other drugs, it is far more harmful to that child to have to endure 
the trauma of foster care," Wexler said.

"This doesn't mean you simply leave a baby with an addict. But it 
does mean that drug treatment for the mother should be the first 
choice, instead of foster care for the child. And those are cases 
where there really is a problem."

Maternal Drug Use

In Los Angeles County, Sophy attributed the near tripling in the 
number of detained babies to increased drug use by pregnant mothers 
and a campaign to encourage hospitals to report positive toxicology results.

Sophy said 70 to 80 percent of the cases have involved mothers who 
tested positive for methamphetamine use, and he said about 40 percent 
of the mothers are placed in substance-abuse treatment programs.

"About 40 to 60 percent of them end up back as intact families," 
Sophy said. "We work really hard to get these parents connected to 
services because we want to reunify them."

ICAN's Durfee said maternal drug abuse in Los Angeles County was the 
leading cause of accidental death in 2006 among babies and children 
younger than 5. There were 25 deaths, up from 15 the previous year. 
Twelve of the deaths were associated with methamphetamine and 12 with cocaine.

But Wexler and Lewis said researchers also have found it difficult 
for medical examiners to determine whether the deaths resulted 
directly from substance abuse or from conditions associated with 
poverty and lack of care before and after birth.

"I'm not saying maternal drug use is harmless," Lewis said. "It can 
have an influence on fetal growth, birth weight and neurological function.

"But we are saying there are other influences on fetal growth that 
may be more costly, in terms of their damaging effects, than drug use."

Lisa Fisher, spokeswoman for the California Department of Alcohol and 
Drug Programs, said most medical and addiction experts now say fears 
have been overblown about the long-term effects of drug exposure on babies.

"I think a lot of people would agree with (Lester)," Fisher said.

For Bejarano and Herrera, the research is little consolation.

The day after placing the couple's children in agency custody, Pate 
said a social worker received results of a background check showing 
the parents had no criminal or child-abuse history.

The social worker also received test results showing Herrera had no 
drugs in her system, she said.

Still, instead of returning the children to the couple, Pate said the 
social worker told the parents Kelly could stay with a relative while 
they participated in a voluntary family reunification plan.

Pate wrote in the lawsuit that, after the couple refused to take part 
in the reunification program, social workers filed a detention report 
with the court alleging Herrera had used drugs while pregnant.

The suit alleges DCFS filed a fabricated court petition to illegally 
detain their children based on a false-positive drug test.

In February, a judge found the grounds for detaining the children 
were not met and ordered their immediate release from foster care.

In late March, the judge threw the case out of court.

Herrera said she is relieved the ordeal is over, but her daughter 
still has nightmares and wakes up in the middle of the night screaming.

"Is she thinking of when she was in the DCFS car, and the door 
closed, and she was driven away from us to be placed in a home with a 
whole bunch of strangers?" Herrera said.

"Now, even if we are right here at the house and hear the doorbell, 
we jump. Is it a visitor, or is it someone else?"



Excerpts from California law regarding hospital drug-testing of 
pregnant mothers and assessment of risk to children:

California Penal Code 11165.13.

A positive toxicology screen at the time of the delivery of an infant 
is not in and of itself a sufficient basis for reporting child abuse 
or neglect.

However, any indication of maternal substance abuse shall lead to an 
assessment of the needs of the mother and child pursuant to Section 
123605 of the Health and Safety Code. If other factors are present 
that indicate risk to a child, then a report shall be made.

However, a report based on risk to a child which relates solely to 
the inability of the parent to provide the child with regular care 
due to the parent's substance abuse shall be made only to a county 
welfare or probation department, and not to a law enforcement agency.

California Health and Safety Code 123605.

(a) Each county shall establish protocols between county health 
departments, county welfare departments, and all public and private 
hospitals in the county, regarding the application and use of an 
assessment of the needs of, and a referral for, a substance exposed 
infant to a county welfare department pursuant to Section 11165.13 of 
the Penal Code.

(b) The assessment of the needs shall be performed by a health 
practitioner, as defined in Section 11165.8 of the Penal Code, or a 
medical social worker. The needs assessment shall be performed before 
the infant is released from the hospital.

(c) The purpose of the assessment of the needs is to do all of the following:

(1) Identify needed services for the mother, child, or family, 
including, where applicable, services to assist the mother caring for 
her child and services to assist maintaining children in their homes.

(2) Determine the level of risk to the newborn upon release to the 
home and the corresponding level of services and intervention, if 
any, necessary to protect the newborn's health and safety, including 
a referral to the county welfare department for child welfare services.

(3) Gather data for information and planning purposes.

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