Last week, NBC ran a troubling story involving Wisconsin doctor John Cox, who lost custody of his daughter after he accidentally fell asleep on top of her. He feared he broke her collarbone so he immediately called his wife, also a doctor. While the baby appeared to be fine, his wife suggested he take her to the hospital.
But in Cox’s words, “[T]aking her to our own hospital was the single most harmful decision that we made for our baby.”
According to the story, a nurse practitioner misinterpreted the baby’s birthmarks as bruises. A pediatrician misread a crucial blood test result. Despite the fact that 15 medical experts reviewed the record and determined that there was little reason to suggest that the child had been abused, Wisconsin child welfare authorities still removed the child.
This story reflects a troubling dynamic within the child welfare system – the refusal to admit that we might be wrong. So much of our work is based on guesswork and tough judgment calls. We observe injuries on a child. We try to work backward to figure out what happened. We form conclusions and opinions based on our best guess.
Yet to best serve families, shouldn’t we always be open to the possibility that our best guess might actually be wrong?
If so, we must then embrace a mentality that invites others to prove us wrong. We must invest in high quality attorneys willing to challenge decisions made by judges, caseworkers and doctors. We must ensure that all parties have access to experts, who can closely review and examine findings. We must require transparency, which at a minimum requires that those involved in a case have access to all relevant documents so they can scrutinize decision-making.
The more scrutiny, the better. Bring on the dissenting opinions.
But in reality, this rarely happens. Once decisions are made by those in power – agencies, doctors, courts – we create systems to discourage scrutiny.
We don’t compensate attorneys to engage in high quality representation and if they do, they often encounter resistance frustrated with their advocacy. We don’t disburse funds for lawyers to hire experts to investigate whether opinions were actually reasonable given the facts of a case. And we often make it difficult for those advocating on behalf of families to gain access to the very documents they need to show that a mistake was made.
As a result, the system presents nearly insurmountable obstacles to prove that the initial decision was incorrect.
About a decade ago, I heard a powerful story which demonstrates why we must create a culture of scrutiny. A criminal defense attorney was traveling from Detroit back home to Washington State and she happened to sit next to a man who was distraught. The man had just left a court hearing, at which his daughter’s rights had been terminated because the court had found that the daughter had shaken her baby, causing brain damage. The grandfather was in tears, worried that neither he nor his daughter would ever see the child again.
Coincidentally, it turned out that the attorney actually specialized in shaken baby cases and invited the grandfather to send her the medical records, which he did. Over the next week, the attorney – pro bono – poured over the records and found medical experts to review the records.
They concluded that the tests did not demonstrate that the baby had been shaken. So the attorney entered an appearance as the attorney for the mother, filed a motion for the court to reconsider its decision to terminate parental rights, and waited nervously.
Here’s the remarkable part of the story – the judge admitted that she had erred.
The judge reviewed the paperwork and the findings by the experts. She revisited the medical records. And she concluded that the new evidence clearly proved that she had made a mistake. She immediately rescinded her termination of parental rights order and sent the child home, apologizing to the family. The unnecessary destruction of a family was prevented by one fortuitous plane ride.
It shouldn’t take a lucky twist of fortune for such things to occur. Whatever role a professional or volunteer plays in the child welfare system – judge, caseworker, lawyer, expert, doctor, court appointed advocate – we must invite scrutiny and welcome others to prove us wrong. We must be open to being challenged. We must soften to the possibility that we might be wrong.
Because if we don’t embrace this mentality, we will only end up causing more harm to the families we are here to serve.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.