PITTSBURGH (CN) – Another new mother has convinced a federal judge to advance claims against social workers who allegedly seized her newborn baby and kept the child in their custody for months because eating poppy seeds caused her to fail a drug test.
The latest case is strikingly similar to claims being considered by another judge in the same court. Both lawsuits name Lawrence County Children and Youth Services (LCCYS) and hospital operator Jameson Health System as defendants, as well as individual case workers.
Eileen Bower says her nightmare began after she registered a false-positive on a morphine screening because she ate a pasta salad with poppy seeds moments before going into labor. Three days after he was born on July 13, 2009, Brandon Brothers II became a ward of the state, having been “forcibly removed” from the arms of his crying mother, according to the mother’s lawsuit.
Bower says child services and the hospital conspired to seize newborns if their mothers tested positive on compulsory, hypersensitive drug screenings that are apt to produce erroneous results if the mother ingests certain foods, like poppy seeds.
Once the department gets word of a purportedly positive test result, officials rush to obtain a court order and seize a mother’s newborn “without any further investigation into family circumstances whatsoever,” Bower claims.
That conspiracy separated Bower from her baby for 75 days, the lawsuit states.
No federal or state regulation requires Jameson to screen maternity patients for drugs, according to the complaint.
And the tests used by the Jameson Hospital North Campus in New Castle, Pa., employ “cut-off levels [that] are far lower than those set by the federal government for federal workplace drug-testing programs,” Bower claims.
The level of morphine found in Bower’s urine was “well below the federal guidelines for a positive drug test but entirely consistent with the amount of morphine expected to be found in a urine sample within hours of eating a product that contained poppy seeds,” according to the suit.
Though federal workplace drug-testing programs require a drug concentration of 2,000 nanograms per milliliter or higher for a urinalysis to be considered positive for opiates or morphine, Jameson allegedly has a different standard. Screening is considered positive for opiates if the level of opiate metabolites found in the urine is 300 nanograms per milliliter or higher, according to the suit.
Bower says her screening didn’t even meet that inappropriately low mark.
Nevertheless, in contravention of its own faulty internal drug-screening standards, Jameson allegedly considered Bower’s test to be positive. Bower claims she never used illegal drugs while pregnant with Brandon, and “urine tests throughout her pregnancy were negative.”
“LCCYS did not investigate in any manner whether plaintiff’s positive drug test could be a false positive due to plaintiff’s ingestion of certain foods or medicines,” and the agency moved to seize the baby, according to the suit.
The defendants, including caseworker Eva Lightel, moved to dismiss, but the court refused to dismiss, citing strikingly similar precedent.
In October 2010, Elizabeth Mort claimed the LCCYS, Jameson and a different caseworker seized her newborn because she registered a false-positive after eating a poppy-seed bagel. This past summer, the federal judge presiding over Mort’s case dismissed negligence and false-light claims against Jameson, but allowed the rest of the case to proceed.
U.S. District Judge Terrence McVerry came to a very similar conclusion in Bower’s case on Monday. LCCYS and Lightel cannot get immunity for allegedly violating Bower’s due-process rights, just as Mort’s caseworker lost her immunity claim.
In Mort, U.S. District Judge David Cercone said the alleged baby-seizing policy “reflects repetitive action that is taken after there has been more than sufficient time to deliberate. It can result in the separation of mother and child within days of birth without any valid basis for doing so. Where that happens, the rights involved are fundamental, the deprivation is significant, the government action can be found to be an arbitrary use of government power and the executive action can be said to transcend the realm of negligence and deliberate indifference and reflect conduct that is so clearly arbitrary that it shocks the conscience and therefore violates the substantive due process rights of the affected family.”
McVerry also upheld Bower’s conspiracy claim in light of the other case.
“In Mort, Judge Cercone concluded that a constitutional conspiracy claim had been properly pled because Jameson allegedly worked closely with Lawrence County CYS to establish the testing program; played an integral role in testing and reporting; and knew that Lawrence County CYS would act to sever custody without undertaking any other investigation. That analysis is persuasive and equally applicable to the averments in this case,” the 19-page opinion states.
Bower cannot, however, claim invasion of privacy against Jameson for allegedly placing her in a false light by incorrectly reporting positive test results to LCCYS.
“Jameson did not communicate Bower’s drug test results to the public at large or to numerous persons,” McVerry wrote.
The defendants must file an answer to Bower’s suit by Nov. 28.