Baby-Seizing Nightmare Can Go to Trial

     PITTSBURGH (CN) – Social workers must stand trial for seizing a newborn baby without finding out whether a poppy-seed bagel could have caused the child’s mother to test positive for a trace amount of opiates, a federal judge ruled.
     “Elizabeth Mort never imagined that the last thing she ate before giving birth to her daughter – a poppy-seed bagel – would lead to the loss of her newborn,” according to a suit filed in October 2010.
     But that’s precisely what happened, she and the baby’s father claimed. The couple was barred from seeing their week-old baby for four days, and they could not take the child home for another six days.
     Lawrence County, Lawrence County Children and Youth Services, a caseworker and the hospital where the baby was born moved to dismiss the complaint, but U.S. District Judge David Cercone refused last week.
     The judge noted that Mort and her partner, Alex Rodriguez, met the high standard required to keep a Section 1983 claim against government workers afloat.
     The couple said Lawrence County Children and Youth Services had a policy of taking infants into state custody if the mother tested positive on one single drug screening at a hospital run by Jameson Health System.
     The level of drugs needed to trigger a positive result on Jameson’s test was exponentially lower than the level used in federal workplace drug-testing programs, according to the suit. Such levels make all the difference when it comes to determining whether illegal drugs are at work or whether food has caused a false-positive.
     Mort says she never used illegal drugs during her pregnancy, and that her newborn was seized because the defendants adopted an overzealous, take-the-baby-first, ask-questions-later policy.
     Knowing that Jameson’s tests were sensitive to very low levels of opiates and morphine, and that the tests routinely reported false-positives, Children and Youth Services should have investigated whether Mort’s positive results on an initial and confirmatory drug test could have been erroneous, according to the suit.
     But social workers never informed Mort that she tested positive, and they never questioned what level of drug concentration the tests reported or whether Mort consumed food that could trigger a false-positive. Instead, they obtained a court order and seized 3-day-old baby Isabella from her home over her parents’ pleas, according to the suit.
     The caseworker eventually realized her error and reliance on faulty test results, but she still refused to return the baby immediately, the parents say.
     Save for the two tests taken on the day Mort went into labor, nothing else indicated that Mort used drugs, Judge Cercone said.
     In fact, “tests and treatment only supported the opposite inference,” he noted.
     “Mort’s treating physician … believed the test result was a false positive,” the 32-page opinion states. “Baby Rodriguez had tested negative for exposure to opiates. Mort had a very low level of opiate metabolites in her system which was consistent with consuming certain foods known to produce false positives. Mort had consumed a food known to produce positive test results two hours before going into labor. No one asked Mort or any of her family members about the positive test results, her prior activities during pregnancy, the foods and drinks she consumed shortly before going into labor, the composition of her family household, and so forth.”
     The caseworker, Chrissy Montague, claimed she was entitled to immunity from suit because her petition for a court order to confiscate the baby was done in furtherance of her statutory mandate to protect children from abuse.
     Cercone said that claim was “wide of the mark.”
     Mort and Rodriguez had taken issue with Montague’s decision to initiate the confiscation process in the first place “without any individualized or specific investigation or determination that Baby Rodriguez was in danger of child abuse.” The couple did not sue over Montague’s petition for a court order, the judge said.
     They also sued Montague over her alleged refusal to return the baby after acknowledging that the seizure was baseless, Cercone noted.
     “These allegations identify decisions and actions that are beyond the petitioning and ministerial functions and are predicated on factual assertions that do not establish entitlement to immunity as a matter of law,” Cercone wrote.
     The judge also refused to dismiss a conspiracy claim against Jameson Health System, finding that the couple had sufficiently shown that the hospital worked closely with social workers to enable an unconstitutional baby-seizure protocol.
     Cercone did, however, dismiss the claim against Jameson for negligent infliction of emotional distress, finding that the couple failed to allege that the hospital’s conduct caused their injury.
     Fact and expert discovery must be completed by Nov. 22.

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