Sunday, March 25, 2012

Who oversees when CPS takes the kids?

The Bakersfield Californian

By Lois Henry

When government throws a sucker punch, the repercussions can ruin lives. And that's exactly what it looks like Kern County Child Protective Services did to one local mom when it took her two children last February without a warrant and with no evidence that the children had been harmed or were in any danger whatsoever.

In fact, the day before CPS took "Sara" and "Bobby," according to the official CPS log, the social worker told the mom that she was still reviewing information and didn't have an update on the case.

"There was no warning at all," said the mom, "Helen." "We were following all of their recommendations to the letter."

But on Feb. 25, 2011, the social worker arrived at Helen's house while she was at work and took the children from the nanny.

I've given the family different first names and won't be using their last name to protect their privacy.

For those who've followed my columns, you may recall that I've chastised CPS for not doing enough to protect children.

This may seem a contradiction, but I believe the same glaring issue is at the heart of this case, in which CPS went way overboard.

That glaring issue is a total lack of oversight.

No one outside the Department of Human Services, under which CPS operates, has the power to examine whether CPS cases are bungled, if workers are properly trained, if someone had an ax to grind or the department is simply not following the law.

These cases sometimes result in deaths. Yet, even then, the public isn't allowed to sort through the wreckage to see whether something could have been done better. It's all behind closed doors.

That secrecy extends to juvenile dependency courts, where no one except the judge, the county and the accused get to know what's going on.

Even the documents produced from that process are supposed to be confidential.

Parents, attorneys and others who share them can get slapped with a misdemeanor, as one county official ominously warned me when I started asking about this particular case.

Talk about a chilling effect. My office got downright frosty.

This isn't light stuff here.

We're talking about when, how and whether government should step in and sever the most sacred bond known to humankind, that of a parent and child.

That's a lot of power.

When it's wielded without accountability, we have a problem.

And the case I'm about to detail is a big one.



***



Of all the mistakes made in this case -- and there were many -- the pivotal head shaker came when CPS social worker Tamara Williams decided to take Helen's children under the assumption she was endangering Sara by allegedly exposing the child to unnecessary medical procedures.

That's a very complicated call to make and you can't really blame Williams for relying on the recommendation of two medical doctors, one of them Sara's pulmonologist for the previous two years, the other the director of a child abuse center.

They told Williams they believed Sara was "at risk and needed to be removed from the home." That was the clincher for Williams, according to what she later told Helen, according to entries in the CPS "delivered services log," which chronicles all actions in an open case.

Williams decided on Feb. 24, 2011 that the children needed to be removed from the home.

She didn't actually show up at Helen's house and take the children until the following day, Feb. 25, 2011, according to the log.

And she did it without a warrant -- big mistake.

That's a woefully common mistake in Kern County where DHS Director Pat Cheadle told me herself that CPS doesn't need a warrant to take kids. She would not address this case specifically, but discussed department policies in general.

Really? Yes and no.

The law states that social workers must have a warrant unless they believe the child is in imminent danger, which the courts have defined as meaning the child will suffer physical harm or death within the few hours it would take to get a warrant.

Williams waited 24 hours.

If she truly believed Sara was in imminent danger, she should have grabbed her as soon as she got off the phone with the doctors.

In fact, this case was opened Jan. 1, 2011, according to the CPS log. It had already dragged on for the better part of two months, making the claim of "imminent danger" extremely suspect.

Williams obviously had more than enough time to get a warrant.

That's assuming a judge would have agreed with her evidence, which, after two months of investigation, basically came down to the recommendation of the two doctors, neither of whom provided any proof of actual harm done to Sara.

And up to that point, Williams had reviewed zero medical records in a case that hinges on an in-depth knowledge of Sara's medical history.

Which leads us to big mistake No. 2, the records.



***



Sara's medical history is extensive.

The now 5-year-old has been in and out of hospitals practically since she was born.

She and her brother, Bobby, were both adopted by Helen, a local doctor and single mom.

Unlike Bobby, who is robustly healthy, Sara had a rough start.

She was born in 2006 to a meth-addicted woman who had had no prenatal care. And, yes, she tested positive for exposure to methamphetamine and marijuana as a newborn.

Chronic respiratory problems were just one aspect of Sara's ailments. She also had severe gastrointestinal problems, including alternating bouts of diarrhea and constipation. And she grew very slowly or sometimes not at all.

After repeated hospital and doctor visits, she was eventually diagnosed with cystic fibrosis at UCLA in 2007. That diagnosis was confirmed at Stanford University Medical Center. Cystic fibrosis is a genetic disease that manifests itself by repeated lung infections, gastrointestinal problems and low weight gain.

Once her medications and treatments were tailored to that diagnosis, Helen said, Sara began to grow and had far fewer respiratory problems that required hospital stays.

Sara has a well-documented diagnosis of tracheomalacia, which means her trachea is weak and collapses in on itself. Treatment for that condition is the same as for cystic fibrosis.

As you can imagine, there are hundreds, if not thousands of records detailing her history.

But according to social worker Williams' log, she didn't get any records until Feb. 25, 2011 -- the day she took the children. Those are the only records listed in the log as having been received or reviewed by Williams.

In fact, the county still did not have all of Sara's records by mid-April 2011, which was well after the detentional hearing upholding the removal of her children, according to court transcripts.



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The one set of records detailed in Williams' log are from Sara's stay at Bakersfield Memorial Hospital Jan. 1 to Jan. 13, 2011, which also happens to be where the CPS case originated.

Those records, indeed, paint a bad picture of Helen, suggesting she adjusted Sara's oxygen levels (though only supposedly increasing them, which wouldn't have hurt the child if true) and preventing nurses from entering Sara's room at times.

Helen agrees the family's time at Memorial was rocky.

Sara was being treated for pneumonia. And during her stay, Helen said, she did have run-ins with nurses whom she said improperly stored some of Sara's expensive medication, ruining it. She also had words with the hospitalist, Dr. Anthony Thomas, whom she said confused her with the mother of a different cystic fibrosis patient.

By the time Sara was transferred to Lucille Packard Children's Hospital in Palo Alto on Jan. 13, 2011, whispers of Munchhausen syndrome by proxy were already swirling.

That's a condition in which parents hurt their children or exaggerate symptoms in order to get attention from the medical community.

Munchhausen is a rare, complex and little understood mental illness.

Eric Mart, a nationally recognized expert on Munchhausen by proxy, told me it's such an easily confused diagnosis that some countries have abandoned MBP as a diagnosis, replacing it with "fabricated illness." But, either way, he said the first order of business must be to concentrate on the child, not the parent's actions.

Is she really sick? Are the treatments and medications causing her any harm?



***



So, was Sara really sick?

The short answer, based on the five-inch high stack of medical records I pored over, is yes. The records are replete with doctors noting her chronic cough and mucus lodged stubbornly in her lungs.

Whether that was caused by cystic fibrosis came under question and, ultimately, was used against Helen.

Doctors at Lucille Packard determined Sara did not have cystic fibrosis, but allergies and asthma. What exactly she's allergic to wasn't indicated, according to a discharge summary from Lucille Packard. And allergy medications did not improve her symptoms while in the hospital or later.

The discharge summary also shows that while doctors initially took Sara off many of the medications and treatments she'd been on when admitted, they ultimately re-prescribed them as Sara did poorly when they were taken away.

Those medications included pulmozyme (an enzyme that digests mucus in the lungs) with HTS (salt water mist) and Creon, a digestive enzyme, as well as Miralax for constipation. They also reinstated Sara's chest compression vest, which she used several times a day to clear her lungs.

Doctors at the Lucille Packard hospital also noted that Sara, indeed, had night time hypoxia (loss of oxygen).

The discharge summary instructed Helen to work with her gastrointestinal specialist at Cedars-Sinai Medical Center to wean Sara off the enzymes, but otherwise kept her medications and treatments essentially the same.

All of which seems to answer "Was Sara being harmed?" with a clear "no."

But Dr. John Stirling, director of the Center for Child Protection at Santa Clara Valley Medical Center, and Dr. Christopher Harris, Sara's pulmonologist at Cedars-Sinai, saw it differently.



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Stirling's assessment would become a linchpin in the county's case against Helen.

He was called in by Lucille Packard hospital when Sara was transferred from Memorial.

He, along with Harris and Memorial's Thomas, said Helen repeatedly misrepresented Sara's condition, which caused her harm.

Early on, Stirling speculates to social worker Williams that Helen has "body image issues" and that she believes "to keep Sara sick is to keep her healthy."

The fact that Bobby has no such illnesses is explained away in that "one child is often scape goated," according to Williams' log. Meaning, I suppose that Helen's alleged mental disorder was making Sara the scapegoat.

In email from Stirling to Harris (see adjoining story), Stirling minimizes other physicians' concerns about Sara's hypoxia and encourages Harris to be unequivocal with CPS otherwise they would risk "losing an ally."

Stirling, a general pediatrician, never had any kind of psychological workup done on Helen. He never even had an in-depth interview with her. Nor did he ever examine Sara.

In a letter that the county used during the detentional hearing as proof Helen couldn't be trusted with the children, Stirling writes: "Our psychiatric colleagues agree that Sara has undergone some medical trauma as a result of these extensive, invasive and mostly unnecessary investigations and treatments."

Not quite.

Dr. Jeremy Wilkinson, a child psychiatrist, visited Sara once at Lucille Packard and said she seemed to have some anxiety but he ruled out medical PTSD and excluded Munchhausen by proxy.

"This 4-year-old has respiratory conditions not formally diagnosed, but which have resulted in difficulties in adjusting for the patient and her mother," he wrote. "I could not say to what degree the mother's involvement and responses are appropriate or not at this time, based on a single interaction."

Hardly conclusive of anything.

Yet, the county said Sara had suffered medical trauma at Helen's hands and ran with it.



***



In its official charges, the county, citing information from Stirling, Harris and Thomas, asserts:

* That Sara was never intubated as Helen had said (yes, she was intubated in 2008 at Mercy, according to Mercy's and UCLA's records);

* That numerous tests had shown Sara did not have cystic fibrosis (only Dr. Harris' notes from Nov. 30, 2010, say that such a test was done, which Helen says she was never informed of);

* That the child had never been diagnosed with lymphocytic colitis, which is chronic diarrhea (records show that Cedars-Sinai did diagnose that condition in October 2010);

* And was never diagnosed as having Celiac disease (a gluten-free diet was, in fact, prescribed by a Cedars-Sinai GI specialist to see if that would alleviate Sara's stomach issues rather than resorting to more medications).

Nevertheless, Stirling -- who, remember, had never personally examined Sara -- wrote a letter to the county asserting that "(Helen's) misplaced anxiety/catastrophic thinking has significantly affected Sara's medical care."

The only time Stirling mentions actual physical harm is when he says Sara has had "unnecessary pharmacologic treatments, which are potentially harmful to Sara's current and future health." But he doesn't say how she might have been harmed.

The only medication Stirling or others point to as problematic, primarily because they accuse Helen of writing her own prescriptions for it, is Creon, a digestive enzyme.

Helen denies writing her own prescriptions for Sara (see sidebar on Faast Pharmacy), even though it isn't illegal or unethical for doctors to do so in California.

Either way, Creon is among the medications listed in Cedars-Sinai records. Clearly her doctors had prescribed it or knew it was being prescribed. Harris, himself, acknowledges to social worker Williams that he prescribed enzymes and antibiotics to Sara on previous occasions.

A spokeswoman from Cedars-Sinai told me that Harris would have no comment for this story. Stirling said he would consider discussing the case with me if Helen provided him a waiver. While Helen at first agreed, she later declined on advice of her attorney. Memorial's Thomas never returned my calls.



***



If you need a recap here, I don't blame you. There's a lot of detail to wrap your head around.

In short, Sara absolutely was a sick little girl based on extensive records.

The county did not have all of Sara's records prior to taking the children illegally without a warrant.

Allegations that Sara was being harmed by excessive medical procedures were never enumerated.

No actual harm, or true potential for harm, was proved.

Helen may well be one of those "helicopter" parents who hover over every sniffle. She's almost surely "hyper vigilant," as some doctors were quoted as saying in social worker Williams' log. And she certainly did herself no favors changing Sara's primary and specialist doctors numerous times, which opened her up to allegations of "doctor shopping."

All of that, however, is a far cry from child abuse, which I don't believe the county came close to substantiating.

That didn't keep the county from zealously working to keep Helen's children away from her, her family, their pastor and lifelong family friends.



***



The Welfare and Institutions Code (361.2 and 361.3) states that social workers must first look at placing children with noncustodial parents, then relatives and extended family members before they stick kids in foster care.

Kern County Department of Human Services Director Cheadle and CPS Director Antanette Jones confirmed that is the county's policy.

Helen's family members quickly filed applications for the children, but Bobby and Sara went to foster care and CPS remained mum on the status of those applications for weeks.

Helen's attorney had to petition the court last April to try to get the children placed with Helen's sister "Carol," who was very close to the children and had routinely cared for Bobby whenever Sara was hospitalized.

The transcripts from those hearings show an incredible arrogance, to the point of being insulting, on the part of the county's attorney, Jennifer Feige, and Minor's Attorney Teryl Wakeman.

Feige argues that if Carol gets the children, she will be intimidated by Helen into letting Helen abuse Sara through the medical system.

Carol is a marriage, family, child counselor whose license would be at stake were she to defy a court order. She has no criminal background and her home study came back crystal clear.

There's no proof of Helen intimidating anyone and certainly no proof that Carol had ever, or would ever, cower to her sister's demands. Feige doesn't even bother to offer evidence on the issue. Nothing.

It's just assumed by Feige and Wakeman that intimidation could happen and the court accepts their wildly unfounded assertions.

Neither Feige nor Wakeman would return my phone calls.

In siding with the county's attorneys, Judge Robert Anspach, who has since retired, goes on to fret about the need to keep the children in an "objective" environment where they can be monitored so "the truth" of the allegations can be ferreted out, according to hearing transcripts.

Remember, the children were taken and that action was already upheld in an earlier detentional hearing based on the belief that Helen had harmed Sara through medical procedures.

But Anspach makes it sound as if foster care is being used as a laboratory to further the county's case against Helen.

He denied placement.

Helen was restricted to seeing her children once a week during a two-hour supervised visit at the DHS building.



***



While in foster care, Sara did not require hospitalization for lung infections. But it was during the springtime, when she typically does better, Helen said.

Of greater note, however, is that she lost weight while in care. So much weight that she dropped two levels on the growth chart after having made steady progress under Helen's care.

Her lung function also decreased from about 100 percent while under Helen's care to 64 percent following foster care, according to testing done by Palo Alto's Lucille Packard Children's Hospital in October 2011.

Numerous other issues repeatedly showed how a lack of oversight allows CPS to run roughshod.

For example, Bobby was taken out of his regular school and placed in a new one without Helen's knowledge or consent. That's patently illegal as Helen had not lost educational or medical rights over her children. CPS workers knew that but still tried to keep Bobby in the new school after Helen brought it up.

Meanwhile, Sara got a cut on her head and was taken to the hospital for stitches, again without Helen's knowledge or consent.

And Sara could only phone her mom during scheduled times.

During those calls, the foster mother, per CPS instructions according to court transcripts, put them on speaker phone so mother and daughter had no privacy.

At each new offense, Helen had to go back to court to force the county to abide by its own rules.

Makes you wonder how these things shake out for parents without Helen's resources.



***



As the clock ticked toward a mid-May second, jurisdictional hearing where Helen could either get her children back or be forced into a protracted legal battle, she opted to have a psych evaluation done by Thomas Middleton, which she shared with me. Middleton is a well-known local psychologist who the juvenile court uses regularly to evaluate parents and kids.

Middleton's report goes over Sara's medical records in painstaking detail from the time she was born.

He hits on a point that is glossed over by nearly everyone else in this saga, that Sara was born drug-exposed.

Having more than 20 years' experience doing eligibility and autism evaluations for the Kern Regional Center, he wrote, he's seen drug-exposed children show numerous, severe and often atypical medical conditions that change over time, much like Sara.

Far from harming Sara, he wrote, Helen should be commended for providing such diligent care to the child that she improved over the years.

"I do not consider Helen to be a threat to her children," he concludes.

It did no good.

At the jurisdictional hearing May 16, Judge Anspach refused to allow Helen's attorney to present newly collected medical records or expert testimony, which had to be done via computer video. To have experts in court would have taken at least another several months.

Helen was given a choice (no choice really): Plead no contest to much-reduced charges and get her children back or continue the once-a-week supervised visits with the kids in foster care until the conclusion of the case, which could be two to three years.

Helen pleaded no contest to endangering her children due to an anxiety disorder.

Though there was never any allegation of harm to Bobby, he was added as a potential victim.

Helen's name was made a permanent part of the California child abuse registry and she was ordered to go to counseling, which she was already in because of the stress of losing her children.



***



Helen had gotten Bobby back just before her plea. But county attorney Feige fought giving her Sara, agreeing only to allow Carol custody of the girl under monitoring by CPS and still limiting Helen's visitation.

"This individual has a prescription pad and access to medication," Feige says during various court hearings as her reason for refusing custody to Helen.

After several months in Carol's care, during which a public health nurse regularly weighed Sara and required Carol to keep a detailed log of everything she ate, Sara was finally returned to Helen in mid-August, 2011, almost six months after she had been taken away.

CPS continued to weigh her once a month and Helen was still under court-ordered counseling. Other than that, there was little contact between the county and Helen's family.

In December, CPS closed its case against Helen, who was now apparently "cured" of the anxiety disorder they accused her of having but which psychologist Middleton did not find.

Kern County essentially practiced medicine without a license, not to mention psychiatry, on Helen and her children for no real reason.



***



Normally, the public has no idea what goes on behind the doors of Kern's child welfare system.

Frustrated parents who have legitimate concerns are usually so terrified they won't dare speak out. Who can blame them when their children hang in the balance?

But because Helen was willing to share her story and I obtained so many documents on the case, the public now has a rare glimpse into how the system works -- or doesn't.

It's not the individuals that I have a beef with. It's the secrecy behind which they all operated that allowed incompetence, mistakes and downright arrogance to railroad the case forward.

It's a perfect example of why we need to break down that wall of secrecy.

I'm not alone.

Judge Michael Nash, Los Angeles County Juvenile Court presiding judge, unleashed a firestorm by opening juvenile dependency courts to the press last month for the same reasons I outline above.

The general public is still kept out of the courts and lawyers can have the court closed if they can convince a judge "there is a reasonable likelihood that access will be harmful to the child's or children's best interest."

But at least someone is watching over the county's shoulder. I believe this, and other, CPS cases show Kern County should follow Nash's lead.

Predictably, protests against Nash's order have been fast and furious, mostly coming from public employee unions and some child welfare advocates.

After all, the system must be protected.



***



Meanwhile, Helen is continuing efforts through Kern County juvenile court and a separate appeal to have her no-contest plea set aside and either have a new hearing based on all the evidence or to have the original findings reversed. She hopes to have her name cleared from the child abuse registry.

But most of all she doesn't want to live in fear that her children will be stolen away from her again.



Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com