Court Documents Reveal Conflicting Accounts in Baby Sammy CPS Case

Reason TV has obtained court records in the
Samuel Nikolayev case that spurred a statewide audit of
California’s Child Protective Services agencies. The documents
reveal a sharp difference of opinion between doctors regarding the
medical condition of the baby at the time he was seized from his
parents without a court order, as well as allegations of parental
neglect made by social workers and Sacramento County Child
Protective Services (CPS).

Reason TV produced a video featuring the case in August, but at
the time court documents were sealed, and Sacramento CPS claimed it
therefore wasn’t legally allowed to comment on the specifics of the
story. Sacramento Superior Court gave an undefined timeline for a
ruling on Reason TV’s petition to unseal the records.

 

On the day the above video was released, the court called and
said the petition to unseal the documents had been approved. When
asked, the court clerk denied that the timing had anything to do
with the video’s release. 

Since then, parents Anna and Alex Nikolayev have filed a lawsuit
against Sacramento County and will not comment on this story.
Sacramento County Health and Human Services Director Sherri Heller
also would not comment on the specifics of the case due to the
pending lawsuit. 

Ongoing Health Problems

At nine days old, Samuel Nikolayev was diagnosed with
Ventriculoseptial defect and Atrioseptal defect: essentially two
holes in the heart requiring daily medication. For the first five
months of his life, Samuel’s parents took him in for monthly
checkups to monitor his progress, which improved slightly as he
slowly gained weight and showed increased energy.

Still, pediatric cardiologist Dr. Hessam Fallah recommended
heart surgery as soon as Sammy reached a safe weight, according
to medical records. But Fallah said Anna Nikolayev expressed
“doubts regarding surgery.” Fallah noted that the Nikolayevs spoke
of visiting a physician while in Germany who advised against
surgery until Samuel reached 8kg (17lbs). He called this advice
“not valid.” 

The Nikolayevs took Sammy to Colorado to visit his grandparents,
and it was on that vacation that he contracted the flu. Upon
returning to Sacramento, they took Samuel to Sutter Memorial
Hospital, where he was admitted to the ICU for Influenza B and
“failure
to thrive,” a medical term to describe an underweight
baby. 

Stuck in the Hospital

Samuel Nikolayev entered Sutter Memorial Hospital on April 16,
2013 with severe flu symptoms. Seven days later, his mother would
pull him out against the wishes of the medical staff and spur
Sacramento Child Protective Services into action. 

When Reason TV interviewed the Nikolayevs in August, Alex
Nikolayev told us, “They were coming up with some random stuff.
Finding another thing just to keep us there.”

This “random stuff” turned out to be concerns that Sammy was off
his heart medication,
according to medical records. Hospital staff wrote that Anna
Nikolayev admitted to them that she had stopped giving Samuel his
medications while on vacation in Colorado for three weeks, and they
said Anna tried to treat a hernia Samuel had developed by
taping coins to either side of it. The Nikolayevs’ attorney has

filed an objection to these details, saying they amount to
hearsay and cannot be substantiated.

Hospital employees also wrote that Anna refused IVs and feeding
tubes that doctors recommended in order to get Samuel the hydration
and nutrition he needed, bringing the conflict to a head.  On
April 23, she left the hospital with Samuel, against the medical
advice of the staff.

A social worker employed by the hospital reported Anna’s
behavior to California Child Protective Services, saying that the
baby’s life was in imminent danger. 

A Second Opinion 

The Nikolayevs have always contended that they were unhappy with
how employees at Sutter Memorial treated them and that they only
wanted a “second opinion.” And this is partially confirmed by the
fact that they did take Samuel directly to another hospital in the
area, Kaiser Permanente.

The Kaiser visit was hectic, with police officers showing up an
hour in because of the CPS complaint and then
leaving once they found Samuel under competent medical
supervision. The Nikolayevs believe this should have been their
last interaction with the police and CPS. After all, the doctor at
Kaiser
wrote that “clinically the patient is well appearing, smiling,
tolerating PO formula while in ED and hydrated
appearing.” 

The doctor at Kaiser told the Nikolayevs that removing a child
from the hospital “without proper discharge” as they did at Sutter
Memorial was not a good idea but said he could understand the
mother’s concern for her son and her belief that she “can help him
improve at home faster than him receiving NG (feeding) tube and IV
line.” He
discharged Samuel hours later with instructions to follow up
with Samuel’s pediatrician the next day, noting that he did “not
have concern for the safety of the child at home with his parents
as they do appear competent and concerned [with] the child’s best
care” and “are aware of how to give medication at home since [they]
have been doing this since he was first diagnosed.”

A final line in the discharge report reads, simply, “CPS has
been made aware from Sutter facility.”

“Expressed Frustration” 

On the afternoon of April 24, officers and a social worker
showed up at the Nikolayevs’ apartment, and the removal of Samuel
Nikolayev, captured on tape by Anna’s camcorder and depicted in the
opening moments of Reason TV’s video, played out. 

So how did the Nikolayevs go from “competent and concerned” with
Samuel’s care to being raided and having their baby removed within
24 hours? Court records reveal that the Sutter Memorial social
worker, who had originally reported the case to CPS, didn’t trust
the work done at Kaiser. 

Although the Kaiser staff consulted with nurses and doctors at
Sutter before discharging Samuel, they did not provide enough
information to satisfy the social worker, citing medical privacy
laws. Upon learning that Samuel was discharged with instructions to
follow up with a pediatrician, the social worker “expressed
frustration at this because the child needs immediate follow up
with his pediatric specialist doctors, including the cardiologist,
not just his pediatrician.” 

It’s unclear why, given the relatively
benign discharge instructions from Kaiser, Sacramento CPS took
the extreme measure of removing a child from the custody of its
parents without a court order and without notifying the parents of
where he was being taken. Department head Sherri Heller would not
comment directly on the case but did defend the practice in an
August interview with Reason TV. 

“The law is clear that it is appropriate for the agency to act
without a court warrant if children are in imminent danger of
physical harm,” said Heller. 

Samuel Nikolayev was taken back to Sutter Hospital and held for
eight days, and Alex and Anna were allowed periodic, supervised
visits. In early May, Samuel underwent a successful heart surgery,
but only after the Nikolayev’s received a signed letter from the
hospital’s cardiologist making clear that the surgery was
necessary but “not an emergency.” 

Audit CPS

All of the information is finally public, but it raises nearly
as many questions as it answers. Was this a case of an erratic
mother whose stubborn, backwards ideas about medicine put the life
of her baby at risk, as Sutter Memorial and Sacramento CPS would
like you to believe? Or did hospital staffers and social workers
use the power of the state to bully two young parents into
accepting their dictums on what constitutes proper treatment and
prevent them from seeking a second opinion, as the Nikolayevs say?
Was baby Samuel’s life in imminent danger, and was it necessary for
CPS and the police to storm the house and take him away without a
court order, especially given that they sought treatment at a
different hospital?

Some of the answers depend on whose words you believe, though it
is clear that more than one medical professional believed that an
eventual heart surgery was necessary for the baby’s long-term
survival. It’s also clear that the Nikolayevs sought medical
attention for their baby on a regular basis in those first five
months of his life, visiting a pediatrician at least once a month.
They appear to have sometimes ignored medical advice, but how often
that was the case is still somewhat unclear. 

What remains evident is that this incident would never have come
to light if Anna hadn’t placed a camcorder on her kitchen counter
and pressed “record” moments before the police entered her house
and took Samuel. No court document or medical record can come close
to conveying the raw terror felt by a mother losing her child in
the way that video can. Time and time again, we’ve seen cheap video
equipment answer
the question, “Who will watch the watchers?”

But in the case of a powerful agency like Child Protective
Services, that’s still not enough. A video may have opened up the
debate in California, but only increased transparency will begin to
solve the long-term, systemic problems.

An audit is underway, and nobody knows for sure whether it will
uncover more abuses of power like those
documented in Orange County or if it will largely exonerate
wrongly maligned agencies and tell a story of social workers doing
the best they can in impossibly tough situations. Either way, a
one-time audit may not go far enough.

Transparency is about accountability for day-to-day operations.
Protecting patient privacy is a legitimate consideration, but in a
case like the Nikolayevs’, where neither party necessarily wants
the court records sealed, it’s hard to see who wins by keeping it
under wraps. Many other states have open family and juvenile courts
that allow the media and public to easily access information that,
in California, can require months of waiting and cost hundreds of
dollars to maybe, eventually obtain.

Reason Foundation Director of Education and Child Welfare
Lisa Snell
has made other common sense reform suggestions as well, such as
treating child abuse and neglect cases as criminal matters that
guarantee due process rather than administrative matters that give
CPS carte blanche power to strongarm families. 

She also says we should examine funding incentives that increase
agencies’ budgets based upon the number of abuses
reported. For the past 12 years, California has put far more
children into the foster care system than any other state in the
U.S., more than Texas and New York combined, according to
the
Adoption and Foster Care Analysis and Reporting
System. 

There are limits to what any one case, especially one as
complicated as the Nikolayev case, can teach us about a statewide
bureaucracy. But in the absence of open records and due process
protections–the most basic elements of transparency and
accountability–it’s impossible to even know the extent of the
problems that may need fixing.