04.13.12

Parents Wrongly Accused of Child Abuse Struggle to Get Kids Back

One misinformed doctor’s diagnosis can be enough for a finding of abuse. We need to provide more due process to parents before taking their children away, writes Rachel Blustain.

In the wake of the Penn State child-sexual-abuse scandal, legislators in at least 10 states have called for broader reporting of child abuse and neglect. But before we get even more aggressive in trying to protect children, we need to make sure that we aren’t destroying their families in the process.

A stark reminder of what can happen when there’s a premature removal and rush to judgment made the news this month. In 2008, William “Dave” O’Shell shot and killed his wife, Tiffany, and then himself, just two weeks after child-protective services found that their daughter, Alyssa, had multiple bone fractures and accused O’Shell of abusing her.

Tragically, when O’Shell committed the murder-suicide, doctors had already confirmed that Alyssa’s fractures were not the result of abuse but of a rare genetic disease called spinal muscular atrophy, which took her life only months later.

Earlier this month, Tiffany’s parents came forward to tell how the very services meant to save kids can help wreck their parents and families when they jump too quickly to conclusions about what happened. The parents had been unsuccessful in pursuing legal actions against the hospital and local social-services agency that investigated Alyssa’s case.

“The system has to change,” Tiffany’s father said.

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Most people hear about the failure of child-protective services only when they don’t act fast enough and children die. But the opposite problem—when children are removed from their homes in error—rarely makes the news, even though it happens startlingly often. In 2010, nearly 40 percent of children who had been removed from their homes—more than 85,000 children that year—were later returned with no finding of abuse or neglect, according to the Department of Health and Human Services.

How have we come to this point?

The problem lies in a system that is driven by fears of worst-case scenarios, as well as in the inherent difficulty of knowing what really has happened in a family where a child has been hurt.  

Given the potentially grave consequences of leaving children in unsafe homes, some doctors routinely diagnose unexplained injuries as child abuse. “When your tool is a hammer the whole world is a nail,” said Diana Rugh Johnson, an attorney and child-welfare law specialist in Atlanta.

And a single diagnosis—often by a doctor with no expert training in child abuse and neglect or in the particular symptoms that a child is showing—is often considered enough for a child’s removal.

Alternative diagnoses do come up—but often not until weeks, months or years later, when a case has already been to trial. By then, families like the O’Shells have often suffered untold harm: young children and their parents are deprived of critical bonding time, breastfeeding relationships are destroyed, and marriages fall apart under the stress.

All too often, parents find themselves caught up in a Kafkaesque system that assumes their guilt until they can prove their innocence.

I worked with a mother whose 6-month-old son was taken from her after a doctor determined his broken leg was caused by abuse. In the months afterward, two doctors contradicted that finding, but it still took 10 months before a judge advised child protection to stop the investigation. The mother had been nursing her son when he was removed from her; he was a toddler by the time she was able to bring him home again.

An exception to the rule happened last year, when Darcy and Tye Miller lost all three of their children to child-protective services after X-rays of their premature infant twins showed healing rib fractures—a condition an expert later testified could have been caused simply by picking them up. In an unprecedented step, a judge eventually ruled against the agency, calling its actions “groundless” and “offensive,” and slapped it with the parents’ $32,000 legal bill.

Unfortunately, the story made news not because of the trauma of the removal, but because the judge’s reprimand was so unusual.  

So what is the solution?

Reforming these institutions is a massively complex task, but since the playing field is tilted so sharply against parents at the outset, we can start with a simple step to level it out: Recognizing the devastating impact child removals can have, and requiring that in medical cases like the O’Shells, no child is removed before the child-protection agency gets a second opinion from a doctor with expertise in the symptoms the child is showing.

Parents who can afford it often take this step themselves, hiring expert witnesses to refute an original diagnosis of abuse. But the vast majority of parents under investigation are poor, and their court-appointed lawyers are often poorly paid, with no funds available for discovery, expert witnesses or, in some cases, to meet with their clients at all. (This assumes that a state provides court-appointed attorneys in the first place. Mississippi and New Hampshire don’t, leaving most parents to defend themselves alone before a judge.)

More troubling still, the American Bar Association found that even when legal representation is adequate, judges are reluctant to overturn findings of abuse for fear of being held responsible for sending a child back to an unsafe home. Throw in the monstrous images the media portrays of parents who have abused or neglected their children, and you’ve created a system that makes it extraordinarily hard for most parents to prove their innocence or bring their children home. 

We don’t know enough about Dave O’Shell to understand what drove him to kill his wife and himself; obviously most parents who are falsely accused of child abuse don’t take that extreme and destructive route. But removals based on false findings of abuse do cause deep and lasting trauma to large numbers of parents, and, more significantly, to their children. That trauma needs to be weighed in the balance when we talk about ensuring the well-being of children.