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.
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