Government & Constitution

Letter from California: A tale of two states with something in common

Letter from California: A tale of two states with something in common
(Courtesy of Liberty Counsel)

California and Massachusetts are separated by over 2,555 miles. However, they share much in common when it comes to protecting their children.

If you live in Massachusetts, you may be very familiar by now with the Justina Pelletier case.

Briefly, Justina, a 15-year-old Connecticut resident, diagnosed by Boston’s Tufts Medical Center with Mitochondrial Disease, a rare genetic muscle wasting condition, after she was referred by Tufts to Boston Children’s Hospital in February 2013, when she became ill with the flu while in Boston with her family.

Justina’s doctor at Tufts wanted Justina to be seen by a specialist at BCH because of the complications that Mitochondrial Disease can produce and suggested that the parents take her there.

Once at BCH, Justina was seen by a psychologist on staff, instead of the specialist she had come to see. The hospital then determined that Justina should be taken off of the medications previously prescribed by her Tufts’ doctor following her psychological assessment.  The BCH psychologist concluded that Justina suffered from a psychological disorder rather than a medical issue.

When the parents objected to the psychological diagnosis and wanted to discharge their daughter in order to seek a second opinion, the Department of Children and Families was called and the parents lost custody of Justina, first in an emergency decree and then formally in court a few days later.

Justina’s removal from her parents’ custody was based on a claim of “medical abuse.”  In other words, it was alleged that the parents were essentially making Justina believe that she was ill by treating her for a medical issue rather than treating her for a psychological disorder.

In a report filed in April 2013, BCH justified their decision in contacting DCF, by reporting that, “Due to concerns regarding Justina’s regressive behavior changes around her family, the multiple medical procedures and care episodes she has been through…and both parents’ resistance towards recommended treatment plans for Justina…a child protection team was convened.”

BCH told him that Mitochondrial Disease does not exist, said Lou Pelletier, Justina’s father.  “Instead they said she has Somatoform Disorder, which is essentially a stress-related mental problem.”

Then, under the care of BCH, Pelletier has watched her daughter suffer.

“They said she had been misdiagnosed, overmedicated and forced to undergo unnecessary procedures,” he said. “It was as though they were accusing us of needlessly harming our daughter.”

Pelletier said Massachusetts DCF has never visited his home, but that Connecticut DCF  investigated them and found nothing wrong.

Initially, the family was under a gag order and prohibited from talking to anyone about their case, he said. Recently, however, Lou Pelletier broke his silence in order to save his daughter.

The Pelletiers’ battle to regain custody of their daughter is ongoing.  Photographs of a once figure skating Justina have turned into a wheelchair bound adolescent, who according to reports, has not received an education while in custody, has not been allowed to exercise her religious beliefs, and has not been allowed to have contact with her parents without supervision, typically, for only an hour per week.

The California agency sworn to protect children in its custody is called Child Protective Services.

CPS was in the news not too long ago.  Like the Massachusetts’ DCF case involving Justina Pelletier, California CPS removed a child from its parents’ custody when the parents sought to obtain a second medical opinion.

In April 2013, the Nikolayev family, Russian immigrants living in Sacramento, California, took their five-month-old son, Sammy, to a local hospital because of flu symptoms.  Anna Nikolayev complained when she saw a nurse giving her son antibiotics and became concerned.

Sammy suffers from a heart murmur and had been seeing a doctor about his condition since birth at the same local hospital.  The doctors eventually placed baby Sammy in ICU to monitor his condition but, after a couple of days the doctors began talking about performing heart surgery.

“If we got the one mistake after another, I don’t want to have my baby have surgery in the hospital where I don’t feel safe,” Anna said.

After telling the doctors that she wanted a second opinion, the Nikolayev family removed their child without a proper discharge and took him to another hospital, Kaiser Permanente, she said.

“The police showed up there. They saw that the baby was fine,” Anna said. “They told us that Sutter was telling them so much bad stuff that they thought that this baby is dying on our arms.”

The doctor treating Sammy wrote in medical records: “I do not have concern for the safety of the child at home with his parents.”  The parents subsequently took Sammy home and hoped that was the end of the issue.

The following day, CPS showed up unannounced at the Nikolayev’s house and the father, Alex Nikolayev, said he was physically attacked.

“I was pushed against the building, smacked down. I said, ‘Am I being placed under arrest?’ He smacked me down onto the ground, yelled out, ‘I think I got the keys to the house,’” he said.

Upon entering the house, a Sacramento police officer, according to the videotaped incident: “I’m going to grab your baby, and don’t resist, and don’t fight me, OK?”

Anna had thought to set up a camera the day before in the event CPS or the police decided to make a visit to their home. Baby Sammy was subsequently placed in CPS custody.

While the Pelletiers’ child was not forcibly removed from her parents, as was claimed in the Nikolayev case, though Justina is not allowed to leave the hospital, the reasons given for the removal of the children into a protective agency’s custody is very similar.  Both parents sought a second medical opinion after disagreeing with a hospital’s diagnosis and both parents subsequently lost custody of their child.

Some believe that cases such as the Pelletiers’ and the Nikolayevs’ happen far too often because the state receives financial reward.

Sammy Nikolayev has been returned to his family, other notable CPS custody cases in California, like the case involving Ruby Dillon’s daughter, where tThe mother alleged during her divorce that the couple’s daughter had been molested by the girl’s father. CPS gave custody of their daughter to her father, have remained unresolved.

Justina Pelletier was recently moved from a facility in Massachusetts, where she was being housed, to a Massachusetts’ owned facility in Connecticut, where she awaits a permanent return to her family.

Deanna Fogarty, a California woman, who recently was awarded approximately $11 million for her lawsuit against CPS alleged that her daughters were removed when social workers lied in order to justify their removal. Fogarty believes that the system is a “system of lies.”

Fogarty said she believes that children are removed so often by CPS for the financial reward.

“I would submit that the massive funding tied to the removal of a child has caused Child Protective Services to morph into a mechanism for financial gain,” she said. “Money has fundamentally shifted this agency’s objective from one of protector to that of the perpetrator and with it the tendency for this agency to abuse its power with regularity. Legislative reform and accountability is vital when it comes to an agency endowed with so much power and responsibility.”

Presumably, Massachusetts DCF is also continuing to benefit financially by having Justina in their custody and control since February 2013.

California has taken steps to ensure that instances like the Nikolayev, Dillon, and Fogarty cases never happen again by introducing legislative reform and accountability.

Earlier this year, Republican California Assemblyman, Tim Donnelly, introduced Assembly Bill 1828, “Sammy’s Law” named after baby Sammy Nikolayev. The bill if passed, would reform how CPS operates by requiring a video and audio recording of all interactions between CPS social workers and the families, including interviews and removal proceedings.

Massachusetts may want to consider following in the footsteps of California by introducing similar legislation in their state to hold DCF accountable for its’ actions, not only in the Pelletier case, but in future cases in which families believe they have lost custody of their children without proper legal justification.

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