The Health Beat Blog

Tuesday, Oct 09 2012 08:25 PM

LOIS HENRY: Higher court to Kern: give this mom a hearing

BY LOIS HENRY Californian columnist lhenry@bakersfield.com

It's concerning any time a court of law has to be reminded to actually follow the law. When that court is holding the fate of children in its hands, it's down right disturbing.

I'm talking about Kern County Juvenile Court, which was told by the 5th District Court of Appeal earlier this month that it is, in fact, obligated to allow people accused of child abuse the opportunity to present evidence of their innocence.

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Lois Henry hosts Californian Radio every Wednesday on KERN 1180 AM from 9 to 10 a.m. You can get your two cents in by calling 842-KERN.

This is the latest round in an astounding case in which Child Protective Services took a local doctor's children claiming she was harming them by exposing the youngest to unnecessary medical procedures for made-up diseases, otherwise known as Munchhausen syndrome by proxy.

That is an extremely rare, little understood mental disorder where parents allegedly make up illnesses or even injure their own children in order to get attention from the medical community. It's very controversial, with many psychologists questioning if it truly is a syndrome at all.

But here in Kern County, our CPS has taken children from more than one family based on such accusations.

Flaws in the county's procedures and later its legal case against the doctor were rampant, starting with the fact that CPS took the children without a warrant, no evidence they were in imminent danger and not even any medical records.

The county began investigating allegations of Munchhausen in January 2011 and took the children, whom I called Sara and Bobby in previous stories in order to protect their privacy, a month later.

Ultimately, their mom, whom I called Helen, pleaded no contest in May 2011 to reduced allegations that she had put the children at risk due to an anxiety disorder.

This was a very complicated case that centered around Sara's health.

Both children are adopted. Sara was born in 2006 to a meth-addicted woman who'd had no prenatal care.

From the start, Sara had chronic respiratory and gastrointestinal problems, including alternating bouts of diarrhea and constipation. And she grew very slowly or sometimes not at all.

After repeated hospital and doctor visits, she was eventually diagnosed with cystic fibrosis at UCLA in 2007. That diagnosis was confirmed at Stanford University Medical Center. Cystic fibrosis is a genetic disease that manifests itself by repeated lung infections, gastrointestinal problems and low weight gain.

Once she began treatments for cystic fibrosis, the little girl began to grow and did very well, though she still had wintertime bouts of respiratory issues.

There are hundreds, if not thousands of records detailing her history from several different hospitals and physicians.

Yet, CPS had none of those when it took both her and Bobby. As the case progressed, Helen had difficulty getting records in time for the May hearing.

Her children had been in foster care for nearly three months and she was facing the prospect of many more months, if not years, without them if she continued to fight, Helen told me.

The records she needed to prove that all of Sara's treatments had been duly prescribed by doctors were slow in coming.

She decided to cop to the lesser charges in order to get her children back.

But that meant her name would go onto the Child Abuse Central Index held by the state.

Once she started getting records that did show Sara was diagnosed and prescribed treatments just as Helen had said, she tried to go back to court to petition to have her no contest plea overturned and the county's case against her dismissed.

At first, Judge Louie Vega did set a hearing on the petition to go over Helen's evidence. But later he said it was really a hearing to determine if he should hold a hearing on Helen's petition. That's a ridiculous waste of time, if you ask me.

And it becomes crucial when you understand that the clock was ticking on Helen's case.

CPS was trying to close her case, or terminate its "dependency jurisdiction." That's not the same as dismissing it. The charges and Helen's plea would still stand. Closing the case would mean CPS believed Helen is all fixed now and the kids are no longer in danger.

Once the case was closed, Helen would have no opportunity to present her evidence to prove her innocence.

In mid-November 2011, Vega finally had his hearing to see if he should hold a hearing (sheesh!) and, of course, found no need for it and denied Helen's petition.

She filed a second petition, which included even more new evidence unearthed in the records.

One of Sara's doctors had written to CPS stating that Sara was indeed ill and she had absolutely prescribed the treatments Helen was following. There were other records showing that even after CPS became involved, Helen was following doctor instructions to the letter.

OK, Vega, again said, the new evidence suggests the need for a hearing. He scheduled it for late December 2011.

But, wouldn't you know, the hearing on CPS's move to close Helen's case came up just a few weeks before. Vega ruled the case closed and scuttled the hearing to look at Helen's new evidence.

Hmmm. Makes you wonder if there was a rush to close Helen's case precisely so her evidence wouldn't see the light of day.

Court records show that Vega and County Counsel, representing CPS, figured it was all the same either way. If Helen's case was closed, CPS was out of her life just as much as if the court found there was no basis for the CPS action in the first place.

No way.

First, there's the small issue of the truth. Was Helen abusing her child or not? Did CPS do its job properly or not? As a taxpayer, I'd kinda like to know the answers to those questions.

Second, even when a case is closed, if you've pled to abuse charges, your name is registered as a child abuser forever. That can only be erased if the case is erased, not "closed." It needs to be dismissed, tossed out, found to have been without merit.

Helen appealed.

Now, the 5th District Court of Appeal has confirmed she should have been allowed her day in court.

The case is coming back to Kern County where the juvenile court will have to hear Helen's evidence, as it should have done in the first place.

Regardless of the outcome, I'm glad justice will finally be served.

But it's troubling that Kern had to be forced to set that table.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com

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