MN Child Protection Case Highlights Extremes, Flaws in America’s Child Welfare System

By @FrederickReese |
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    Frederick Reese

    In Mower County, Minn., last week, a mother fought for the right to do what she felt was best for her child. Lindsey Nagel, 22, contested a case before the Mower County District Court to determine if her 4-month-old son is to be remanded to county authorities in order to administer a recommended medication regime.

    Rico Martinez Nagel — the child in question — was born HIV-positive. Mayo Clinic physicians have prescribed a treatment plan that relies on the administration of antiretroviral medications, something his mother rejects. Rico contracted the virus from his mother, who is in good health despite not taking the HIV medication.

    “I want him to be healthy and thrive, and if I could legally remove him from medication, I would,” she said.

    Lindsey — who was adopted from Romania 20 years ago — believes that she nearly died from a reaction to AZT, a drug used to control the growth rate of the Human Immunodeficiency Virus (HIV), shortly after arriving in the country. As such, she has waved off all control medications, including inhibitors that would have blocked the transmission of the virus in-vitro, and she attempted to block testing of Rico at birth.

    In testimony, she expressed that she was never told about the prenatal treatments. “If offered, I would have thought about it and most likely would have done it,” she testified. Lindsey’s refusal to have her child tested at birth was the impetus of this legal battle. A hour after Rico’s birth, physicians, social workers and hospital attorneys confronted Lindsey on her decision to deny testing, which they all saw as possible case of child endangerment.

    “They just started questioning me right away after I’d just given birth, and all I want to do is enjoy my son,” she said. After being threatened with the removal of her child if she did not consent, and after discussing the situation with the child’s father, she signed off on the test.

    “I carried him for nine months and the only place I wanted him to be was in my arms,” she said, fighting back tears. “It scared me.”

    Rico was placed on an antiretroviral treatment that included AZT. Rico was removed from AZT in early March on fear that the drug was making the child anemic.

    The current case was triggered by a missed nutritional appointment on Jan. 16, in which both of the child’s parents testified that they canceled and rescheduled without intention to skip the session. “Everything is based on suspicion,” said John Martinez — Rico’s father, after the hearing, of the county’s concerns. “The only time we really said no was [the morning Rico was born], when we really didn’t have time to talk.”

    Despite the fact that Lindsay’s parents have stated that they will not pressure their child to take Rico off of his medications — despite their reservations — county officials are not so sure. “I believe the accumulation [of information in] the videos speaks to potential noncompliance going forward,” said Lindsay Brekke, a Mower County Health and Human Services supervisor.

    The court is expected to make a ruling on this case in the next few weeks. Lindsay has vowed to continue to give her child the antiretroviral treatment, despite her reservations.

    Parents’ rights in the United States

    Lindsay’s case is neither unique nor shocking in American jurisprudence. Throughout the country, many parents are forced to defend their right to determine the best course for the children. Many fail in their defense.

    Under court precedence, parental rights have been upheld in the sense that the parent have the fundamental and inalienable right to direct the education and upbringing of their children. In Meyers v. Nebraska (1923), the United States Supreme Court invalidated a state law which prohibited foreign language instruction for school children because the law did not “promote” education but rather “arbitrarily and unreasonably” interfered with “the natural duty of the parent to give his children education suitable to their station in life …” The Court ruled that the legislature was taking it upon themselves to make decisions that interferes with a parent’s right to make deterministic decisions on their children’s behalf.

    This decision also established the principle of “in loco parentis,” in which a teacher or other authority can act in lieu of the parent toward making deterministic decisions on a child’s behalf. The teacher acts based on the parent’s authority, and is not a substitute for it. When a child protection agency acts in defense of a child, they do so under “in loco parentis,” assuming parental control in a situation the organization assumes lacks adequate control. Typically, when such an agency acts to intervene, it is under the assumption that a lack of intervention will significantly impair the individual involved.

    This is a fine line. In Pierce v. Society of Sisters (1925), the Supreme Court ruled that children are not simply wards of the state to be done with as the state pleases: “The fundamental theory of liberty upon which all governments in this Union repose excluded any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.”

    Prince v. Massachusetts (1944) ordained parental rights to the upbringing of children to have supremacy over the wishes of the state: “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.”

    In multiple tests throughout the years — Paris Adult Theater v. Slaton (1973), Carey v. Population Services International (1977), Maher v. Roe (1977), Parham v. J.R. (1979), Santosky v. Kramer (1982), Lehr v. Robinson (1983) and many others — the Court has ruled that a parent’s right to raise their child without government intervention is a fundamental right.

    However, the Court has also ruled that it is not only reasonable for the State to act to protect the innocent, it is expected. While every state is different, there is a generally agreed-upon standard to determine if a government-based protection agency will intervene in forcing a medical procedure to be performed on a child. In general, the standard for governmentally-mandating medical intervention requires that:

    1. The medical community is in agreement about the appropriate course of treatment for the child;
    2. The expected outcome of that treatment is a relatively normal life with a reasonably good quality of life;
    3. The child would die without the treatment; and
    4. The parent is refusing consent for the treatment.

    Typically, if any of these criteria is not met, the courts will reject the protection agency’s request to authorize intervention. Michael Stutman, head of the Family Group at Mishcon de Reya New York and president of the American Academy of Matrimonial Lawyers, New York Chapter, echoed this in conversation with Mint Press News. Stutman argues that the demarcation between the government’s expectation of care and the parent’s right to choose may be based on the court’s interpretation of valid care.

    A parent has the right to not go with the commonly-accepted treatment for his/her child, but the parent cannot choose to do nothing. There must be a definitive plan to ensure the welfare of the child.

    The call for vigilance

    There is another extreme that exists in the current system. In recent years, a number of high profile child abuse cases illustrate the weakness in the child protection system. In 2009 in New York City, seven-year-old Nixzmary Brown was fatally beaten. Prior to her death, she was severely malnourished, regularly beaten — to the point where she had regular black eyes and was typically swollen from bruises — and was tortured by being held under water in the bathtub. “Sometimes she used to get me real angry and I used to just throw her,” said Cesar Rodriguez, Nixzmary’s stepfather, during the post-arrest interview made public during a family court hearing.

    The Administration for Children’s Services were dispatched twice to the Rodriguez home on allegations of abuse, but — on the testimony of the parents — found no evidence of abuse.

    In Las Vegas, Adacelli Snyder — a child born with cerebral palsy — died of severe neglect at the hands of her mother and mother’s boyfriend. Adacelli, a 2-year-old, weighed only 11 pounds when she died.

    Her mother was working with social workers from the Clark County’s Child Protection Services at the time of the death. The protection service has also been tied to another severe case of abuse in which — after eight home visits — failed to correct. The child in question was three years old and severely malnourished, weighing only 19 pounds. She had severe bruising and scarring over the majority of her body.

    Since 1998, the number of child deaths per day due to child abuse and neglect has grown 2 points, from 3.13 in 1998 to more than 5 per day in 2010, according to the National Child Abuse Hotline.

    According to the hotline, a report of child abuse is made every 10 seconds in this country. Fourteen percent of all men and 36 percent of all women in prison were the victim of abuse as children and two-thirds of all drug abusers that have sought treatment claimed they were abused as a child. The per annum cost to provide medical and psychological care, support, legal assistance and protection to the nation’s abused and neglected was $124 billion, as of 2008.

    Child abuse constitutes a major problem. In all, combatting this societal ill requires a commitment from the government toward maintaining a level of vigilance needed to properly address reports of abuse without violating the responsible parent’s prerogative of custodial direction.

    This doesn’t always happen. An example of this is the case of Alize Vick, who —  at the age of 2 — was killed by her foster mother in El Paso County, Colorado. A neighbor from across the street, Mary Ann Hartman, contacted the county’s child welfare authorities with a recording taken from outside of Vick’s foster mother, Jules Cuneo — at more than 300 pounds — sitting on the child and a note: “She really needs you. I am doing my part by writing to you, but you must do the rest.” Cuneo failed to feed the toddler, and the child died from being hurled head-first into a coffee table. No one from child welfare responded. Cuneo was sentenced to 32 years in prison.

    In an investigation by the Denver Post, more than 40 percent of the children that died of neglect and abuse in Colorado over the last six years were known to child protection services, with many not receiving the minimum necessary visits required by law from a case worker.

    Colorado is far from alone. Major cases in New York, Arizona and throughout the nation illustrate the fine line that lies within the field of child protection. Social workers’ first priority is to find a way to keep the family together. A lack of resources and program funding have forced many child protection agencies to take a “make it work at home” attitude, when coupled with a lackadaisical attitude from poor training, political ideology and/or lack of supervision, leads to thousands of children being needlessly exposed to danger.

    What is needed is a happy medium between the extremes: a child protection model that will dutifully report on allegations of child abuse and act on them accordingly, but will not drag a mother into court for rescheduling a doctor’s appointment.

    As stated by Marianna Klebanov for, “Until the system starts looking at itself with a clear lens with a willingness to acknowledge its problems and deficiencies and until those working within the system start putting the safety of minors before personal interests, we will not be doing our part to protect our children.”

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