Family sues children’s hospital, Texas officials for 'unlawful' removal of their children

Nearly ten years ago, Lorina Bourne and Jason Troy say their children were taken from them when a flawed investigation by child protective services led Texas state officials to wrongfully accuse them of abusing their youngest son.

Now, they are seeking justice. Bourne and Troy have filed a federal lawsuit against several members of the Texas Department of Family and Protective Services (DFPS), and Ascension Health, the private health care system that operates Dell Children's Medical Center in Austin, Texas. The latter is the children's hospital where, according to the suit, Bourne and Troy's youngest son, Jason Jonathan Troy, was improperly assessed in 2015 to have suffered from shaken baby syndrome at five months old.

According to the suit, which was filed in April in the U.S. District Court for the Western District of Texas Austin Division, and records obtained by ABC News, at about four months after his birth, Jason presented with an enlarging head circumference and vomiting. He subsequently had brain imaging done and was investigated for shaken baby syndrome. The fluid in his brain required surgery to drain.

Two and a half years later, the family’s attorney hired a doctor to review Jason’s medical records. That doctor concluded that “Jason did have a chronic fluid collection in between his brain and inner skull. The fluid accumulates due to a medical condition of infancy called benign external hydrocephalus. In this condition there is a backup of fluid circulating around the brain's surface.”

The cause of benign external hydrocephalus is unknown but research states it may be due to a problem with the cells that function to reabsorb cerebrospinal fluid, causing it to build up around the brain. The suit also states that Jason's birth records show that he was "born with a collection of blood between his scalp and skull" that "was due to birth-related trauma."

Bourne told ABC News that the hospital where Jason was born, Ascension Seton Medical Center Austin, didn't inform her that Jason had "suffered a birth injury," and that she and Troy didn't learn of it until an attorney reviewed Jason's birth records. While the lawsuit does not allege medical malpractice, it does state that had Dell Children's Medical Center reviewed Jason's birth records, the review would have contradicted the shaken baby syndrome conclusion. Bourne told ABC that if she had known about the birth injury, she feels she would have been able to better advocate against the child abuse allegations early on.

Following Jason's surgery, officials at Dell Children's Medical Center reported their suspicions of shaken baby syndrome to the DFPS, which immediately investigated Bourne and Troy for child abuse, according to the lawsuit. Troy, who lives in Hutto, Texas, just north of Austin, was charged in 2015 by the Travis County District Attorney's office with two felony counts of injury to a child. Troy turned himself in to authorities and was booked and released on his own recognizance while his attorney worked to get the charges dismissed, which they ultimately were in 2018, according to court records reviewed by ABC News.

In the meantime, the DFPS removed then-five-month-old Jason and his older brother, Kainoa, who was four years old at the time, from their parents' custody on July 20, 2015 and placed them into foster care, according to the lawsuit.

"It made me feel horrible. As a parent, you try to do everything you possibly can to take care of your children. And you're taking them to the doctors to get answers … and they misdiagnosed him." Bourne told ABC News. "It was just so heartbreaking and shocking and devastating for it to be turned around on me and wrongfully interrogated and investigated, promptly investigated for child abuse."

According to the lawsuit, Jason and Kainoa were removed "based on false pretense," and that the defendants who worked for DFPS "knew that [Jason] had not been abused or neglected," yet still proceeded to remove him and his brother from their parents' custody and place them in foster care for a total of 150 days, rather than place them with other family members or relatives while the issue was resolved. Bourne says Texas DFPS did not provide an explanation for why the kids were not able to stay with family.

The Texas DFPS declined to comment on the case in response to an ABC News request.

"It was so heartbreaking not having them," Bourne told ABC News. "I had to go to court several times with our attorneys to fight to get them back. And we were only able to see them twice a week for only two hours in the [child protective services] visitation center. And it was just so heartbreaking because every time that they would have to take them back to foster care, they would cry and ask us why we can't go home."

Jason and Kainoa were reunited with their parents on December 21, 2015, just two weeks before Jason's first birthday. Though they were reunited, it wasn't until Jan. 26, 2018, some three years later, that the felony child injury charges against Troy were dismissed.

In the process, Bourne and Troy sold their house to pay attorney's fees, Bourne told ABC News, while Troy also lost his job, though he's since gotten a new one.

Their story is featured in the 2023 Netflix documentary, "Take Care of Maya," which follows a family in Florida fighting a similar battle to regain custody of their daughter after being accused of child abuse by hospital officials. Bourne told ABC she hopes that the lawsuit, like the documentary, will bring attention to the topic of wrongful family separations, and may help other families going through a similar situation feel less alone.

In response to an ABC News request for comment, a spokesperson for Ascension said they had not yet been served with the suit and so could not speak to it specifically.

"At Dell Children's Medical Center, our highest priority is the safety and health of children in our community," the Ascension statement to ABC News continued. "As a healthcare provider in Texas, our doctors, nurses and care teams who have reasonable cause to believe that a child has been affected by abuse or neglect by any person must immediately report this to the appropriate authorities as required by law. We have a duty to work with authorities during their investigation as they make their decision on what is in the best interest of the child."

Bourne, who is Filipino, said she felt that their experience was also different because she's a person of color.

"I felt like we were targeted. And they wanted to take my children from me at all costs," Bourne said. "We just hope and pray that changes can be made so that this doesn't continue to happen to so many families."

ABC News' Tesfaye Negussie and Sabina Ghebremedhin contributed to this report.