Second Opinion? We're Taking Your Child Second Opinion? We're Taking Your Child
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Second Opinion? We're Taking Your Child

by Michael Ramey, ParentalRights.org

One would think having the approval of a doctor and even clearance from the local police would be enough to protect a parent from having their baby taken away over cries of “medical neglect.” In this case, one would be wrong.

Anna and Alex Nikolayev of Sacramento lost custody of their 5 month-old son last week when they decided to seek a second opinion before having the baby undergo heart surgery. Though a second doctor found it safe to release the boy into their custody, and though an investigating officer also cleared the family to go home, the child was taken the next day.

Little Sammy has had a heart murmur since birth, which the parents have been closely monitoring along with a doctor at Sutter Memorial Hospital. So when Sammy developed flu-like symptoms a couple of weeks ago, his parents took him to Sutter again as a precaution. During his stay, a couple of incidents occurred that concerned the parents (such as administrating an anti-biotic to fight his virus). So when Sammy was put in the pediatric intensive care and talk turned to heart surgery, the parents wanted a second opinion.

Unable to secure release from the doctors at Sutter Memorial, the parents took Sammy from the hospital anyway — prompting an automatic call to Child Protective Services and the Sacramento Police — and drove straight to neighboring Kaiser-Permanente Hospital.

Doctors there determined that Sammy was healthy enough to go home with his parents. The doctor noted in his report that he saw no cause for concern in leaving Sammy in Anna and Alex’s care. (Corrective heart surgery is in Sammy’s future; the parents do not dispute this fact.)

Police met the family at Kaiser, checked out the smiling baby, read the doctor’s report, and agreed that Sammy was in no danger. The Nikolayev family was free to go.

That was April 23, 2013. The following day, a CPS worker and Sacramento Police arrived at the family’s home and removed the baby, carrying him back to Sutter Memorial, where he was held in “protective custody.” Though the parents got to visit Sammy to feed him three times a day for one supervised hour, they had to wait until Monday for a hearing.

By then, coverage had gone international, with media outlets in Germany and in the family’s native Russia paying close attention. Ominously, local ABC station KXTV reports, “CPS said they were overwhelmed with the amount of attention by the media into the case, and could therefore take longer than usual to render a decision on Sammy's fate.” (emphasis added)

Traditionally, the Supreme Court has recognized the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” found in the Fourteenth Amendment’s “Due Process” clause. Santosky v. Kramer, 455 US 745 (1982) This protection, however, has been lost on Sacramento CPS. It is also being weakened through judicial erosion in the courts.

Passage of the Parental Rights Amendment will provide parents an explicit constitutional protection; otherwise, they’ll have to rely on the courts, hoping they will continue to interpret the Fourteenth Amendment as they traditionally have (but increasingly no longer do). And the PRA will allow organizations like CPS to know exactly what the rules are that they must follow.

“The liberty of parents to direct the upbringing, education, and care of their child is a fundamental right. Neither the United States nor any State shall infringe this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.”

These two sentences would make clear that CPS cannot take a child away unless it is prepared to prove that the child was in danger caused by abuse or neglect. In this case, it would increase the chances that common sense would prevail and baby Sammy would have gotten to stay home safe and sound with his mom and dad.

Yesterday the county and the family's lawyers reached an agreement to return Sammy to his parents' care, but with stipulations limiting their choices in medical treatment. CPS will continue to be a part of Sammy's life at least until the next hearing, set for May 28th. While we rejoice in the reunification of this family, we grieve over the unnecessary loss of liberty this couple has suffered for no reason.

ParentalRights.org

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