DRUG WAR ON MOMS

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
litigation.

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?"

[sidebar]

AT ISSUE

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.

SOURCE: www.leginfo.ca.gov/calaw.html