Since 2006, expert pediatricians working for child protective services in Texas wielded decisive power in deciding which injuries were accidents, and which could be signs of abuse.
But beginning this month, parents who come under suspicion for physically harming their children will have the right to a second medical opinion and in-person examinations, not merely paper reviews.
A new state law effective this month scales back the influence of doctors working for the Forensic Assessment Center Network, which has provided consultation to the Texas Department of Family and Protective Services since 2006. Network doctors receive as much as 60% of their salaries from the child welfare agency, consulting on abuse and neglect cases and providing expert testimony in court when children are taken from their homes into foster care.
As of Sept. 1, parents accused of child abuse based on these forensic specialists’ review of their cases will be able to obtain a second medical opinion — regardless of ability to pay — and to present a conflicting opinion to a judge in family court.
Following high-profile exposés of medically fragile children wrongfully separated from blameless parents, critics of the Forensic Assessment Center arrangement have become increasingly vocal in the state — taking issue with what they perceive as the child abuse specialists’ conflict of interests and lack of impartiality.
“This is a type of case where the state controls the only expert,” said state Rep. Gene Wu (D), creating “inherent unfairness” for parents fighting to keep custody of their children.
“If you’re a hammer, everything looks like a nail,” Wu added. “If your job is to find child abuse, you’re going to find child abuse — whether there’s really abuse there or not.”
The Department of Family and Protective Services declined to comment, and representatives of the Forensic Assessment Center Network failed to respond to a reporter’s inquiries.
Retired family court judge Michael Schneider, now in private practice representing parents, said the new law could have spared two of his recent clients from a traumatic separation with their medically fragile infant.
In early January, when 7-month-old Casey Lee arrived at Texas Children’s Hospital in Houston with a broken femur, medical staff found several other fractures throughout her small body, in various stages of healing.
Schneider said after a pediatrician working for child protective services called the fractures suspicious and alerted the authorities, Casey’s parents, Wenqi Hao and Kaixuan Li, were barred from entering their baby’s hospital room without supervision. When Casey was discharged after two weeks, she could not go home with Hao and Li. Instead, she was moved to a neighbor’s home, while her parents fought to regain custody in family court.
It took a four-month legal battle to convince a judge that Casey’s injuries were not the result of abuse, but metabolic bone disease that left her body so fragile, even a diaper change could cause fractures. That was established with a second medical opinion, and the court ruled that Casey could be safely returned to her parents.
Schneider said those clients were among the lucky ones. He took the case pro bono, and drew on his personal experience from sitting on the bench in family court. In defending Hao and Li, he presented evidence from an orthopedic specialist who countered the state’s expert in court.
Other Texas parents — those without the ability to spend tens of thousands of dollars on an independent expert witness — have long been at a disadvantage, he added. In a “large number of cases,” Schneider said, the child abuse specialists “just come up with this diagnosis and they stick with it no matter what. They don’t budge.”
In addition to limiting such influence, Senate Bill 1578 authored by state Sen. Lois Kolkhorst (R) requires the child welfare department to refer the child for a second medical opinion from a specialist who was not involved in the original medical report of abuse or neglect, anytime parents, social workers or treating physicians make such a request.
The new law was prompted by a 2019 NBC investigation that revealed several cases of children like Casey, who were wrongfully removed from safe homes and needlessly placed into foster care on the sole recommendation of child abuse pediatricians.
Examples included Mason Bright who was 5 months old in 2018, when he fell from a lawn chair in a Houston suburb while playing at home with his mom and 2-year-old sister. A child abuse pediatrician at Texas Children’s Hospital later found two skull fractures, and determined they couldn’t have come from one fall, the news outlet reported.
Weeks later, as the family relaxed together after dinner one evening, a social worker arrived to take both young children to foster homes. Schneider, who presided over the case before retiring from the bench, told The Imprint he’s still haunted by an audio recording of that moment. The sound of the calm little girl trying to pacify her anguished mother nearly brought him to tears in the courtroom, he said.
“She was trying to call, ‘Mommy, it’s OK, it’s OK,’” Schneider recounted. “Not realizing, someone’s about to essentially kidnap you.”
Schneider said he ordered Melissa and Dillon Bright’s children returned back to them, and fined the department $127,000 to cover the family’s legal costs.
Child abuse pediatrics is a relatively new subspecialty, first recognized by the American Board of Pediatrics in 2006. It remains an exceptionally rare field of practice: There are roughly 350 such board-certified physicians, and approximately 300 practicing nationwide, said Suzanne Haney, chair of the American Academy of Pediatrics Council on Child Abuse and Neglect.
To become board-certified in this area, doctors complete a three-year fellowship in addition to the standard pediatric residency, training that includes instruction on child welfare investigations and how to navigate court hearings. Recent figures show that physicians with the Forensic Assessment Network Center in Texas have provided consultations for 31,000 children suspected to be victims of abuse and neglect.
The cases are fraught for two central reasons: The children being examined tend to be too young to explain how they’ve gotten hurt. And the types of underlying illnesses that can cause
But Haney of the American Academy of Pediatrics said child abuse pediatricians are specially trained to recognize symptoms that could be misdiagnosed as abuse, and more often than not, they identify the underlying condition. She said requiring a second opinion is “rather redundant,” placing a greater burden on the relatively few, already-overloaded child abuse pediatricians there are.
“None of us operate in a vacuum. I’m not making that diagnosis just by myself,” Haney said. “I may be the person whose name is out there, but I’m talking with our neurosurgeons and our radiologists, and you know if any one of them says, ‘Wait a minute,’ it’s a discussion, we sit down, we look at things.”
Haney is also critical of another feature of the new Texas law: requiring an in-person examination, not just a review of the medical record in child abuse reviews.
Haney said there are not enough specialists available to perform an exam for every child they’re asked to consult on — and that they are not always necessary.
“If a CT scan shows something there, it’s not going to change whether I actually see the child in person or not,” Haney said.
Nationwide, allegations of abuse or neglect made by medical professionals are 40% more likely to result in child welfare agencies determining abuse or neglect occurred than reports made by teachers, neighbors or other community members, according to a Marshall Project analysis of national data. And the opinions of child abuse pediatricians on contract carry significant weight with judges — particularly because most parents lack the resources to counter their testimony, Wu said.
What’s more, in family court, the burden of proof is lower than in criminal cases. To separate a child from their parent, child welfare officials don’t have to prove their allegations beyond a reasonable doubt, just that abuse likely occurred.
“The courts are sort of put in this untenable position where they don’t really have a choice,” Wu said. “And it’s just better to err on the side of caution than not.”
Correction: The American Board of Pediatrics was incorrectly referred to as the American Academy of Pediatrics in an earlier version of this story.