According to a lawsuit, UPMC Magee-Women’s Hospital tested a
for drugs without her consent. Then, pursuant to “practices,
and/or agreements” the hospital reported the false positive result
protective services – which then harassed the family. (Photo by Piotrus)
UPDATES, AUGUST 2, 2022:
● A federal judge has refused to dismiss the
claims against the University of Pittsburgh Medical Center. As
The Legal Intelligencer reported in May, the judge wrote that:
“Averments set form in the amended
complaint allege that [Allegheny County Children Youth and Families] used UPMC
as a form of ‘cat’s paw’ to undertake inquiries and to administer drug tests on
UPMC’s labor and delivery patients without their consent, and then to use
reports of those ostensibly private and confidential medical inquiries and
‘provision and uncertain’ test results as a predicate to launch unwarranted and
unconstitutional child abuse investigations.”
The judge also rejected a claim by UMPC that boiled down to: Well, they didn't actually take away the kids, so what happened to the families is no big deal.
● Lawyers for the plaintiffs say that after the
initial suit was filed, more mothers came forward with similar allegations.
They are seeking class-action status.
● Marc Cherna has retired. Unfortunately he was replaced by Erin Dalton,
who is even worse.
● A lawyer for the plaintiffs noted that the decision has implications
well beyond Pittsburgh, telling the Legal Intelligencer: “Hospitals across the
country need to take note of this decision and evaluate their practices.
● Although for years, media swooned over Pittsburgh's dystopian child welfare "predictive analytics" algorithm, known as AFST the first truly independent evaluation reveals that this algorithmic emperor has no clothes.
ONE CASE ILLUSTRATES A
REMARKABLE NUMBER OF PROBLEMS COMMON TO CHILD WELFARE, INCLUDING:
● The fanatical desire to persecute certain mothers
who smoke marijuana – or even are just falsely accused of smoking marijuana – no matter what that persecution does
to their children.
● The harm done by journalists whose work has the
effect of encouraging that kind of persecution.
● The campaign in Pennsylvania to make it even harder
to expunge records of false allegations of child abuse.
● The harm done by the behavior of some doctors who
specialize in detecting alleged child abuse.
have been among the most joyful days in the lives of Cherell Harrington and her
But starting just before she
gave birth to her third child, late in 2017, the hospital where she gave birth
and the child protective services agency in Allegheny County (metropolitan
Pittsburgh) brought the worst kind of stress into the family’s life – they effectively
threatened the family itself.
ultimately agreed that Harrington did not abuse or neglect her newborn in any
Now she is suing
the county and the hospital
not just Cherell Harrington.
to the lawsuit there is a “plan and/or agreement” between the county and the hospital
to do this to new mothers.
The practices involved allegedly
are so common that attorney Margaret Cook of the Law Offices of Timothy P. O’Brien
and lawyers from the American Civil Liberties Union of Pennsylvania are seeking
class-action status for their suit.
ALCU of Pennsylvania’s legal director is a member of NCCPR’s volunteer Board of
The hospital claims
it just follows state law.
But even in
Pennsylvania, where legislators take pride in passing ever
more draconian laws
so they can look tough on child abuse – no matter what
that actually does to the children – there is no requirement to report Harrington
and others like her to child protective services.
Even if Harrington wins her lawsuit,
the nightmare may not end.
all this happened in Pittsburgh, home of the nation’s most
advanced, Orwellian experiment
in using “predictive analytics” in child
The algorithm used by the Allegheny
County Department of Human Services and its Division of Children, Youth and
Families (AC-CYF) doesn’t distinguish between true reports and false reports.
So even though there were no grounds to report the mother at all, the mere fact
that medical professionals reported her to the child welfare agency will raise
the “risk score” for the child if the data are still in the system and anyone phones in some other false report
against the parents.
It’s not clear how long such information
Depending on how
reports are classified and their disposition the information may be available
for a year or
And there is a campaign
underway to make
things even worse
So it’s possible
that decades from now, the child himself may be labeled a higher risk for
abusing his own children if anyone ever accuses him of abuse or neglect.
It all began with a
know why Magee-Women’s Hospital, a part of the University of Pittsburgh Medical
Center (UPMC), decided to test Harrington for drugs.
We do know that Harrington is
African-American – which makes such invasions of privacy more likely.
else we know, according to the lawsuit:
● Harrington never consented to the
● The preliminary test came back
positive, but only for marijuana.
● Such tests often are unreliable.
Later, a more definitive test came back negative.
● The newborn tested negative for
any drugs, including marijuana.
Nevertheless, based simply on that
one preliminary false positive test, the hospital reported Harrington to
Allegheny County CYF.
And that false
positive test was enough to launch an investigation.
Or was it just a “plan of safe care”?
This case illustrates that they’re
really the same thing.
“Plan of safe care”
is a term used in that repository for so much bad child welfare policy, the
Abuse Prevention and Treatment Act.”
Both CAPTA and Pennsylvania law require medical professionals to turn in
new mothers to child protective services agencies if there is evidence the
infant was “affected” by parental substance use.
Officially these are not necessarily child
But they are, in all but
In the case of Ms. Harrington,
according to the lawsuit:
● There were no grounds to turn her
in, since the test was a false positive – and her newborn tested negative.
● Allegheny County responded
anyway, and the response was identical to a child abuse investigation.
So as you read on, and see what
happened to this family, keep in mind that what happened here is exactly the
kind of behavior at least one Pennsylvania seemed to want when
she wrote this story
What happened to the
to the lawsuit:
Less than three days after giving
birth to her son by caesarean section, an Allegheny County CYF caseworker
entered Harrington’s room and told her that whenever the hospital reports any
kind of positive drug test, the agency investigates.
after Harrington was discharged, the same caseworker showed up at the family
home, inspected it from top to bottom, required Harrington and her husband to
answer all sorts of personal questions and even questioned their 11-year-old
daughter about her mother’s “use of addictive substances.”
The caseworker would go on to question the
daughter’s school social worker.
was coerced into a “counseling” session with a drug treatment program and
forced to let the program test her for drugs again.
If she didn’t, she’d be reported to a judge
for “failure to cooperate” and forced to go downtown for drug tests every
was coerced into signing all sorts of release forms – but given no copies of
what she signed.
According to the
lawsuit “Ms. Harrington signed the documents because she feared that if she did
not comply with [Allegheny County Children, Youth and Families] directives, her
children would be removed from her custody.”
Even after the drug treatment
program concluded no treatment was necessary, the harassment continued. The
caseworker returned, inspected the home all over again and – again – questioned
the Harringtons’ 11-year-old daughter.
Based solely on the false positive
drug test the caseworker wrote that Harrington “cannot or will not control
[her] behavior” and her “protective capacity” for her children was “diminished.”
A second case
also describes what happened to another African-American mother, Deserae Cook,
when she gave birth at another UPMC hospital.
Asked upon admission to the hospital if she’d ever used illegal drugs, Cook
replied she’d smoked marijuana in the past but stopped when she found out she
hospital secretly tested her – without her consent -- and the test came back
negative, confirming Cook’s account.
drug test on the newborn also came back negative.
UPMC reported Cook to Allegheny County CYF – and her family, too, was put
through a needless, traumatic investigation.
All of this
happened in spite of the fact that UPMC settled a lawsuit over the same
practices in 2014.
lawsuit sums up the routine behavior of UPMC and the Allegheny County Division
of Children, Youth and Families (AC-CYF) this way:
and AC-CYF knew that a new mother’s self-report to a medical professional regarding
prior drug use [or a new mother’s ‘unconfirmed positive’ drug test] constituted
confidential medical information which UPMC was neither privileged nor legally
required to disclose to AC-CYF absent evidence that her newborn was affected by
illegal substance abuse or had withdrawal symptoms resulting from prenatal drug
Nevertheless, in accordance with past practices, policies, and/or
agreements between the Defendants, UPMC routinely, and in bad faith, reported
this confidential medical information to AC-CYF and AC-CYF routinely accepted
and acted on this confidential medical information to conduct unwarranted
highly intrusive, humiliating, coercive and/or unconstitutional child abuse
investigations of new mothers.
Why would a hospital
be so cruel?
Why would a
big prestigious hospital inflict so much trauma on families? Perhaps they haven’t
thought things through.
where Dr. Rachel Berger heads the “Child Advocacy Center.”
Berger co-authored a notorious article that
formed the basis for an essay urging medical professionals to – literally
– think less
before reporting child abuse.
She also has gone out of her way to minimize
the harm of foster care
– in an essay co-authored by Erin Dalton, a deputy
director of the Allegheny County Department of Human Services, where she
reports to longtime DHS director Marc Cherna.
The fact that
it now appears Cherna’s agency has some kind of special “practices, policies,
and/or agreements” with Berger’s hospital concerning reports alleging substance
use by new mothers is one more indication that Cherna should be deemed to have overstayed
indication is his role in creating his agency’s dystopian predictive analytics
The AFST factor
All of this
would be bad enough anywhere – but this kind of trauma done to overwhelmingly
poor disproportionately nonwhite families is actually worse in Pittsburgh. That’s
because Pittsburgh is a pioneer in using a “predictive analytics” algorithm
whenever a family is the subject of a report alleging child neglect.
two versions of the Allegheny Family Screening Tool (AFST). The first version canvasses
a vast trove of data (most of it collected on poor people) whenever CYF
receives a report alleging child neglect.
It then coughs up a “risk score” which helps determine if CYF will
investigate the call.
alleging abuse automatically must be investigated.
And now, it appears, Cherna and Berger have
created another category of calls that must be investigated: All those that are
part of some kind of arrangement between their respective institutions.)
problem with AFST is not that it affected the initial reports on Harrington and
Cook – the problem is what happens next time.
AFST counts reports workers later
deem true, and reports they deem to be false. Past reports raise the risk score
– period. And if those past reports come from medical professionals, they raise
the risk score further.
The amount of time the county’s
computers can gain access to such reports does
depend in part on whether they are unfounded of not.
Unfounded reports are supposed to be expunged
after no more than one year and 120 days.
So if, in fact, the report was labeled unfounded, the report might no longer be accessible to AFST. But if the report was deemed "substantiated" Harrington and
her family remain at risk of being labeled “high risk” and subjected to the whole
traumatic process – or much worse – all over again.
a move afoot to try to persuade the legislature to let counties keep
even unfounded reports
– perhaps for as long as they feel like it.
If that happens, then in the future, the
danger to families such as the Harringtons could become vastly worse.
is an even
more dangerous version
this version, Cherna is trying to slap a risk score on every child – at birth.
Cherna promises this version will be used
only to target “prevention.” But there is no way to stop him or a successor
from changing her of his mind in the future.
So imagine what the score would be
on a child such as the Harringtons’ infant if that version of AFST had been in
effect when that child was born.
theory, this version is voluntary, but you have to affirmatively opt out and,
as we’ve seen, that’s a risk families actually under investigation don’t dare
of Pittsburgh child welfare under the rule of Marc Cherna was best summed up by
Deserae Cook in an interview with the Associated Press:
She said her experience with the hospital and
with Cherna’s agency
“…was like a kick in
the stomach. What’s the reasoning? It
felt embarrassing and humiliating. It felt like they were trying to find
something, trying to take our child away.”