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How should the system work, and what changes are needed?

No one wants to see a child harmed, whether the bad actor is a parent or another adult. However, some families unjustly accused of child abuse, as well as family rights advocates, argue that the system is biased too far in the direction of suspicion and doesn’t demand enough proof before separating parents from their children-particularly when it comes to the relatively new accusation of “medical child abuse.”

Chronic or complex medical conditions afflicting children, mandatory child abuse screening as part of the pediatric hospital admissions process, and deference shown by courts and other physicians to child abuse pediatricians can combine to tear apart families where no wrongdoing has occurred.

This is the final article in a three-part series delving into the concept of medical child abuse and how it affects families challenged with unusual medical conditions. In this series, we share the perspectives of affected families, family rights attorneys, and legal scholars to illuminate this dark corner of tshe child protection system and point a way toward the better future that is possible.

In the first two parts of this series, two families told their stories of separation after unfounded accusation of abuse. Attorneys and a law professor also shared their insights about flaws in the system. In this final part, we hear from legal scholars who explain how the system is intended to work, and the types of legal changes required to restore families’ rights.

The way the system is supposed to work

What should prompt the state to intervene in family situations, and what form should that intervention take? The Press spoke with Solangel Maldonado, the Eleanor Bontecou Professor of Law at Seton Hall University to understand the backdrop for medical abuse charges. In addition to her role at Seton Hall, Maldonado is also a member of the American Law Institute (ALI), where she is one of the reporters of the Restatement of Children and the Law.

ALI is a nonprofit organization, founded in 1923 and composed of attorneys, judges, and law professors who write Restatements of the Law in various areas, summarizing existing laws and court decisions clarifying how these laws are applied. These restatements are treated as secondary authorities, meaning that judges are not required to defer to them, but often do use them as guidance.

“The U.S. Supreme Court has held that parents have a constitutional right to raise their children without undue state interference,” Maldonado explains. “Parents have a lot of autonomy to make decisions about their children. The state is not supposed to intervene unless the decisions place the children at significant risk of substantial harm. At least in theory, when the state intervenes, the state is not supposed to be trying to put the child in the best situation possible, but rather must protect the child from harm and keep families together if at all possible.”

In the Restatement of Children and the Law drafted for ALI, Maldonado and her co-reporters note that “This relatively high threshold recognizes that although abuse and neglect clearly harm children, state intervention can also harm families and children.”

Another constitutional principle included in the restatement is that “the state’s goal is to assist parents to provide adequate care to their children, not to remove children from their homes if other assistance suffices. Thus, the state will remove children only when serious harm or the substantial risk of serious harm cannot otherwise be averted.”

Maldonado elaborates on this last point, noting that the state can utilize “medical guardians” to safeguard a child’s best interests while keeping his family intact.

“If a parent refuses to comply with medical treatment that the child’s providers agree is necessary to protect the child’s health,” Maldonado says, “the court may, in some cases, appoint a medical guardian to make sure the medical decision is adhered to,” while the child continues to live in his home, with his parents. “To the extent that the state has to intervene, the state is supposed to intervene as little as possible.”

When a family has received different medical advice from different doctors, and “there is substantial medical support for the parent’s choice of treatment,” Maldonado explains, the state is supposed to respect the parents’ right to determine which treatment to follow. “There are cases where doctors disagree. [… T]he restatement’s position is that when there is a disagreement among physicians, the parents should decide.”

Where to go from here

University of North Carolina at Chapel Hill law professor Maxine Eichner explains existing family law and jurisprudence similarly to Maldonado. In a recent law review article, she asserts that guidance for how the state should handle medical child abuse (MCA) charges already exists as a matter of constitutional doctrine.

“The limits that courts have traditionally imposed on government intervention in medical neglect cases are instructive in the MCA context,” she says. “[W]hile different courts phrased the legal tests […] in slightly different ways, at their core, they authorize the state to intervene in parents’ decisions regarding a child’s medical care only when compelling circumstances are present. That requires three things.

“First, the state’s preferred course of treatment must be compelling in the sense that all the child’s medical doctors agree that it is the correct one. Second, the state’s preferred course of treatment must be both likely to result in great benefit and to pose few countervailing risks to the child. Third, the threat to the child’s health from [pursuing the parents’ preferred] treatment must be significant.”

Recalling the Justina Pelletier case, Eichner points out, “When two sets of physicians fundamentally disagree about diagnosis and treatment, the decision maker best positioned to resolve the conflict is generally not a court or child protection official who has spent little to no time with the child. Instead, it is the parent who knows the child best, is most motivated to ensure their welfare, and who has seen the child’s medical issues develop over time.”

Too often, however, in the emerging field of MCA allegations, neither this view nor the protections afforded to parents by the Constitution are respected. States may need to spell out parents’ constitutional rights in order for them to be honored in child protective services (CPS) proceedings.

In a forthcoming article in the American Association of Matrimonial Lawyers Journal, “When the Helping Hand Hurts,” Eichner proposes a few ways to change the system to restore fairness to families.

“First, state legislatures can pass statutes that, as a substantive matter, clarify the appropriate boundaries between parents’ legitimate exercise of their constitutional rights, on the one hand, and genuine child abuse and neglect, on the other,” she writes.

Eichner highlights the following section of the ALI’s Restatement of Children and the Law as appropriate guidance for reform legislation: “A parent’s [health-care] decision is entitled to deference when licensed medical doctors disagree about the diagnosis or appropriate course of treatment and […] the parent’s decision […] is based on an acceptable standard of care or practice in the medical profession sufficient to shield the recommending doctor from liability for negligent diagnosis or treatment. If the recommending doctor could not be subject to malpractice liability based on his or her diagnosis or treatment, […] the parent’s selection of the treatment [is within his or her authority] even if it is not recommended by the majority of doctors.”

Another state law change that Eichner endorses is one that went into effect in Texas in September 2021, requiring Texas family courts and CPS workers to consider second opinions obtained by caregivers, instead of solely those offered by child abuse pediatricians (CAPs). The new Texas law also requires CPS to consult with specialists at the request of parents, the parents’ attorneys, or other doctors. These amendments to the Family Code (Section 261.3017 of Texas Statutes) are, in part, the result of the aforementioned series of exposés published by NBC News and the Houston Chronicle.

Finally, Eichner says, “For those claims of medical abuse that make it to the courtroom, legislatures should also mandate that MCA ‘diagnoses’ be excluded as proof in abuse proceedings. Excluding such diagnoses would require that the government actually meet its burden to prove all the elements of legal abuse, as they are required to do by law, rather than evade this burden by means of diagnostic fiat.”

She says that an MCA diagnosis is a legal diagnosis masquerading as a medical one, a sentiment similar to that voiced by family rights attorney Diane Redleaf in her book, “They Took the Kids Last Night.” A CAP’s diagnosis of “abuse” based on an examination of a child and/or a review of his medical records, Redleaf points out, is an individual doctor’s contention about parents’ or caregivers’ actions and intentions, and that doctor is usurping the function of a judge or jury by labeling such a legal conclusion a “medical diagnosis.”

Regardless of whether states change their laws, as Texas has, Eichner believes attorneys representing families should “vigorously seek to enforce parents’ rights to medical decision making in cases in which medical abuse or medical neglect has been charged” by “rais[ing] the issue of parents’ constitutional rights directly [and] seek[ing] to exclude admission of MCA ‘diagnoses’ as both a violation of parents’ rights and as scientifically unreliable.”

Most American families will never be placed in the position that the Kruegers who were separated from their three children for more than a year. For those who are, access to good legal representation is crucial, and changes to the law cannot come soon enough.

Press image courtesy Parents' Right Foundation
Press Photo courtesy of Seton Hall University Solangel Maldonado is the Eleanor Bontecou Professor of Law at Seton Hall University, where she teaches family law, feminist legal theory, race and the law, and international and comparative family law. She is also co-editor of Family Law: Cases and Materials and Family Law in the World Community, and serves on the editorial board of the American Bar Association's Family Law Quarterly.
Press Photo credit: Jason Wolonick Maxine Eichner is the Graham Kenan Distinguished Professor of Law at the University of North Carolina. She is a member of the American Law Institute and an advisor on the ALI's Restatement of the Law: Children and the Law project. She is also working to prevent unjust charges of medical child abuse from being filed against parents through the UNC School of Law Medical Child Abuse Initiative and MitoAction's Medical Child Abuse Task Force.