By Rachael Levy

When Elizabeth Espinoza gave birth in Los Angeles to her son Gerardo, hospital workers found something in her body that was not supposed to be there: traces that she was abusing illegal drugs, including, reportedly, cocaine.

County children’s services acted swiftly, stripping Elizabeth of custody of her son, even though tests showed he did not have remnants of drugs in his system. That is not unusual. Across the nation, government agencies every day take away on average more than 16 newborns because of a parent’s drug use. These officials are enforcing state laws designed to protect infants at a time when, according to national statistics, about 10 percent of all expecting mothers abuse drugs.

Such protections are intended to give those babies a better life. But when Los Angeles officials took Gerardo away from his mother in 2006, they never envisioned the tragedy that would unfold.

Officials gave legal custody of the boy to a foster mother, Rosa Baez, a woman unrelated to the Espinozas. Three months later, Baez left Gerardo strapped into a car seat that she toted into a neighbor’s home. He suffered a heart attack and perhaps suffocation from the pressure of the straps. Medics arrived, but they were unable to revive him.

Gerardo’s death is not unique. Since 2000, at least 10 drug-exposed newborns have died in foster care — deaths identified in a New York City News Service analysis of court records, local news stories and interviews with family advocates across the nation. These deaths are a tiny fraction of the approximately 18,000 drug-exposed infants who were put into foster care over the same period, according to figures provided by the National Child Abuse and Neglect Data System. And they must be weighed against at least 137 babies younger than one year old who have died since 2000 at the hands of their drug-abusing mothers. Nonetheless, these tragedies show that foster care is not always a safer option for drug-exposed newborns.

The number of foster care deaths is most likely larger since state officials often cite privacy laws barring them from disclosing details. Deaths may also occur in a community’s shadows — never revealed in news coverage or litigation.

“The question isn’t what is a parent doing to get high. The question
is how is the child doing. How is the parent doing as a parent?”

Martin Guggenheim, a foster care expert at New York University, said Americans should realize there is an unintended consequence to removing children from mothers. These children, he said, “died because they were in foster care, not because of what their mother did before they were born. … Foster care is more dangerous than some people appreciate.”

As some state lawmakers see the issue, drug-using women are not fit to take care of their newborns, requiring some kind of intervention. At least 28 states have laws requiring that authorities be notified when a pregnant woman is found abusing drugs, said Kylee Sunderlin, a lawyer with the National Advocates for Pregnant Women. Those mothers are seen as engaging in child abuse, and in many cases that leads to the mother losing custody of her newborn. Last year, Tennessee passed a law that punishes women who use drugs while pregnant — the first of its kind in the country.

But advocates say overzealous legislators are creating drug laws that go too far, breaking apart families rather than providing more treatment and services for a child’s biological parents.

“Drug use by parents should not by itself be a basis for removing children from their care,” Guggenheim argued. “So the question isn’t what is a parent doing to get high. The question is how is the child doing. How is the parent doing as a parent?”

In no state are officials required to put a drug-exposed infant into foster care. While 10 percent of newborns each year, or about 440,000, are born exposed to alcohol or illicit drugs, only a small fraction of them are put in foster care. The great majority stay with their parents.

“The deaths are sort of the extreme horrific example,” said Emma Ketteringham, managing director of the Bronx Defenders in New York, who represents mothers who have lost children to foster care. “You cannot say that drug users are not good parents,” she added. “Our experience has shown that there are plenty of parents that might have used a drug or struggle with a drug dependence problem but can be fit and good parents.”

Some advocates say that authorities too easily rely on removing children, ignoring long-term consequences. Tragedies like the death of Elizabeth Espinoza’s infant are rare, but they still happen too often.

In 2012, medical workers found traces of methamphetamines in Orien Hamilton’s blood. Authorities put the infant into foster care in San Antonio, Texas.

Several months later, an acquaintance of the foster mother got hold of Orien. He somehow placed the infant on the ground, planted his knee on top of her head, and cracked her skull on the floor.

He applied so much pressure that the retinas of her eyes detached, and her brain bled. Orien also had “healed posterior rib fractures, consistent with being shaken,” according to a letter from the Texas Department of Family and Protective Services giving details of the child’s death.

Some cases are not as clear-cut. The 10 deaths of drug-exposed infants in foster care identified by the New York City News Service omitted cases where details were unclear and government officials refused to provide more information.

This included 11-month-old Kaniiyah Ealey, who drowned in a bathtub while in foster care in New Jersey in 2013. While news reports noted that Kaniiyah’s mother had been trying to get sober, officials at the New Jersey Department of Children and Families, when contacted by a reporter, refused to clarify why Kaniiyah was in foster care and whether her mother had taken drugs during pregnancy or after. They claimed federal laws prevented the agency from disclosing details.

In Kentucky in 2011, 2-year-old Watson Adkins died while in the care of relatives, news reports said. But Kentucky’s Cabinet for Health and Family Services would confirm only that Watson was taken from his mother in connection with substance use. A department spokesperson declined to clarify whether the mother took drugs during or after her pregnancy.

There also may be gaps in data. Some states have a history of misreporting deaths. For example, in Tennessee, the Department of Children’s Services said its tracking system failed to document nine deaths in 2011 and 2012.

In states with laws covering drug addiction among pregnant women, local officials have discretion about whether or not to put a newborn in foster care. Alternatively, they can require a mother to seek substance abuse treatment, or they can take other actions.

“You can be in one county and the drug court says, ‘Okay, we’re going to take the child away from home,’ ” said Sunderlin, the child welfare advocate. “But in another county, it could be the complete opposite.”

For those children who do go into the foster care system, drug abuse accounts for a significant number of cases. In 2012, national figures show illegal drug use by a parent — either mother or father — was a factor in 46 percent of the infants placed into foster care, according to the National Child Abuse and Neglect Data System. That is a slight increase from 2008, when substance abuse was involved in 43 percent of the cases. Data are not kept on the number of times those cases involved prenatal drug use.

In California, where Espinoza had her child, her lawyer, L. Wallace Pate, claimed most foster children are taken because of a parent’s drug abuse.

“They’re in there on drugs, on drug use,” Pate said, even though “most of the parents who use drugs are taking care of their children.”

States have have been moving since the 1980s toward punishing women who abuse drugs while pregnant, according to Sunderlin. Legislators introduced bills targeting prenatal drug abuse as the nation feared a “crack baby” epidemic: concerns that pregnant women inhaling cocaine were producing underweight babies born with an addiction to the opiate. In 1990, 34 states debated bills with provisions involving prenatal drug exposure, some of which were designed to help pregnant women through prevention programs.

Legislators introduced bills targeting prenatal drug abuse
as the nation feared a “crack baby” epidemic

Pressure for laws increased as anti-abortion advocates embraced these provisions as a way for further establishing legal rights for a fetus, according to Guggenheim, the New York University legal expert. He said conservatives are “using child welfare to play the fiddle but the real song they’re playing is insisting that fetuses count as human.”

Children’s services, in considering pregnancy cases, are looking “at the behavior of a woman before she is a mother, before she’s had the opportunity to take care of her child,” Guggenheim said.

In 1997, the South Carolina Supreme Court extended child abuse laws to cover fetuses, ruling that pregnant women who abuse drugs could be sentenced to 10 years in prison.

By 2000, hundreds of women had their children taken away because they tested positive for drugs, according to a study by the Center for Reproductive Rights.

A 2003 provision in a federal child-abuse law mandated that a state must notify local child welfare agencies when it learns of infants “affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure.”

While deaths are rare, there are other more common long-term consequences of placing children in foster care. Those children are more likely to become homeless later in life, to abuse drugs, and to drop out before earning a high school degree, studies show.

Children may also be physically abused.

In 2009, Cristofer Shakur Bell was born in in St. Louis, Missouri. Hospital workers found remnants of cocaine in his system.

Christofer’s great aunt, Lennie Bell, 70, told authorities she was willing to care for him, she said. But the Missouri Department of Social Services put the newborn into the custody of Terri Cronin, a foster mother with no blood relation to the infant.

When he was about five weeks old, the baby suffered broken ribs and an arm. The foster mother said that she accidentally fell downstairs while carrying him. The biological parents complained to authorities. No action was taken.

A little more than a month later, the infant was hospitalized with more broken bones, suffering from seizures, damage to his eye and bleeding in his skull. His foster mother said she fell a second time, causing Cristofer to tumble down a flight of basement stairs onto a tile floor, according to a lawsuit. He nearly died.

After brain surgery, his head was bandaged up into a knot, and his “head was pulsating like a heartbeat,” said Lennie Bell, his aunt.

“They had him hooked up like Frankenstein, trying to keep him alive.”

“Nobody should do this to a child,” she said. “The state failed this child by putting him in a home where he got hurt as bad as he was hurt.”

After Cristofer was released, Bell adopted him.

“He’s been through enough with strangers,” she said. “He’ll never go with strangers again.”

In 2012, Missouri charged the foster mother with second degree assault and child abuse. In June, she was sentenced to 14 years in prison after pleading guilty, in a plea deal, to child endangerment.

Cristofer, now 6, attends a St. Louis kindergarten for special needs children. After school, Bell shuttles him to appointments with neurologists and neurosurgeons to treat the lingering injuries.

“He’s still struggling,” Bell said, “but he’s alive.”