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Lawsuit of the Day: Children & Youth about to get smacked

November 20, 2011

2. Law, 5. Pre-Trial, 8. Lawsuits

Lawsuit of the Day: Children & Youth about to get smacked

Here’s the Opinion out of federal court (Western District, PA) for Bower v. Lawrence County Children & Youth, et al.

First, I need to write that Children & Youth have an almost impossible job, analogous to a parole officer – they have to be right 100% of the time.  If C&Y or a PO fail to investigate or fail to act, the consequences can be splashed all over the front page of newspapers:  A child is abused (or worse) or a vicious crime is committed.  It’s similar to reviewing a cop’s action second-by-second when they acted within an evolving, unknown, and potentially dangerous situation.  In many lights, these reviews are unfair.  Someone’s career is often tossed into the gutter.  As a society, we’re big on finding scapegoats.

With that written, we don’t ignore the power-hungry civil servant or the one that believes everything they think is true regardless of the evidence.  They’re out there, and they cause an incredible amount of damage.  Some careers belong in the gutter.

At issue in this lawsuit is the removal of a child after a drug screen for opiates.  Turns out the mom ate McCormick Foods Supreme Pasta Salad. See those little black things? Poppy seeds from this product.  She ate the salad, went into labor, and was whisked to the hospital.  It’s normal procedure to drug screen a delivering mom to understand if the baby needs special attention.  She was screened.  She failed (or did she? More below).  The baby didn’t test positive.

Isn’t it an old wives’ tale (maybe, an old heroin addict’s tale) that poppy seeds can trip a positive result?  No.  Really, no.

The screen limit used to be 300 nanograms per milliliter of blood.  Eating a poppy-seed bagel will result in a 250 reading three hours later.  Eat two?  You do the math. Apparently, eating McCormick products will also trip a result.  However, because of so many false positives (87% of all positive tests), the feds raised their screen limit to 2,000 from the previous limit of 300.  In this lawsuit, it seems C&Y clung to the old 300 standard.  Bad for them.

Before we go further, you need to understand the juxtaposition of the Opinion.  Bower sued three entities – the C&Y agency, the C&Y caseworker (Lightel), and Jameson Health Systems (the hospital that did the test and reported the results; another, unnamed entity, Quest, did the sample analysis).  The defendants filed Motions to Dismiss.  In essence, they responded to the lawsuit with – “Even if everything you claim is true, you can’t sue us!”  That’s not as vacuous as it seems (more below).  The Opinion reviews the case and responds to the requests for dismissal.  When this type of review is done, there is a hugely important thing to understand:  The defendants have not responded to the lawsuit in the way that they would or will at trial – so we’re looking almost exclusively at a story alleged by Bower, and that story is accepted as true.  Anyone can allege anything – all it takes is words on paper and the filing fee.  There may be a whole lotta turmoil under the surface of the water because the time for responding fully hasn’t arrived.  As we’ll learn, three of the five Counts were upheld – that means that the parties are now on their way towards trial or settlement on those three Counts.  The other two Counts are resting peaceably in the gutter awaiting a career or three to join them.

Now let’s go through some facts.  The mom tested positive – but less than the 300 standard.  The confirmation test (a second test) yielded “no reference range,” meaning that the presence of opiates – if any – was at the very least scientifically unreliable for claiming the presence of opiates.  The C&Y standard for confirmations is 100.

What should the hospital have done at this time?  Not reported anything to C&Y because it had nothing to report.  What did it do?  It reported the garbage results to C&Y.

What should C&Y had done at that time?  Responded with “WTF? Why do I care?”  What did it do?  Initiated proceedings ex parte (without the involvement of the mother) to remove the child.  If C&Y wanted to do anything, what should it have done?  Investigated the home, interviewed the mom, and all sorts of due diligence things.  It did none of the kind.  It pranced off to court seeking authority to remove the child.

And it did.

For 75 days.

In a succession of three different foster homes.

Another troubling aspect of this situation – beyond the mere existence of the C&Y caseworker – is how the court responded to the removal request.  Many courts use a “Master” to handle certain matters.  Determining how to divide the assets and liabilities of a dissolving marriage is a common area to use one.  Custody is another.  Masters are not judges.  They are typically attorneys.  The Master’s recommendation goes to the judge – it could be accepted or rejected, or a new hearing in front of the judge is possible.  In this instance – and this is what I find troubling – the Master agreed with C&Y that the baby should be removed.

That decision was based upon drug-screen tests which didn’t violate the county’s own standards, and a complete absence of investigation of the home or family from which the child was removed at the ripe old age of three days.  From a judicial perspective, the Master is either a complete idiot or never read anything in the file before rendering a decision.  The judge then approved the Master’s recommendation.  Is anyone paying attention in that county?

I’ve always told clients to cooperate with C&Y – as they should with most governmental agencies.  But the war stories that come out C&Y raise a lot of issues with the appropriate exercise of power.  Bower appears to have done nothing wrong.  C&Y appears to have done nothing right.  Yet Bower had to fight to get her child back.

Just ain’t right.



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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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