Judging Emily

She felt the piercing loss of her little boy, whom she liked to call Mighty Marty — a nickname he’d earned. Born a month early after a difficult pregnancy, he had steadily gained weight, kicked up a storm during baths, and started to develop a little smile. Marty, Cross believes, was among the thousands of infants who die mysteriously of SIDS, sudden infant death syndrome, every year.

That same day, after the sirens faded, a state trooper, local police officers, and two child welfare investigators arrived and interrogated her. They seemed to have just one question in mind: Did she accidentally kill her baby by rolling over in her sleep and suffocating him?

Cross insisted that was impossible, because she remembered he was a foot away from her body when she woke up and in the same position as he was placed in bed. But, in the eyes of the state, she was guilty — and was treated accordingly.

The death certificate filed for Marty looked past the uncertainties of what happened that night and classified the case as one of “sudden unexpected death of an infant in the setting of co-sleeping in adult bedding.”

In its assessment, the state���s child welfare agency bluntly alleged that the baby “was neglected by his mother,” seizing on the fact that she had co-slept with her son, despite knowing the medical warnings against it, and was also an intermittent marijuana user.

There was more: Cross said the state’s Department of Children and Families raised the specter of criminal prosecution for Marty’s death, and, even more unthinkable, that her then 3-year-old son might be removed from her care. Her name now appears on DCF’s central registry, along with sex offenders, child abusers, and others that the state deems unsafe as caregivers. Being on this registry could affect her future employment, as child care agencies and other organizations use it to screen out potential employees who may be unfit to work with children.

All this in the unbearable aftermath of losing a child.

“It was excruciating,” said Cross, 39, who has pieced together part-time work as a bookkeeper and waitress to pay the rent and help support her family. “I was so angry. They were trying to prove that I killed Marty.”

Reeling, she and her husband asked Boston Children’s Hospital to look into Marty’s case. Scientists with the hospital’s program on infant sleep deaths ran genetic and brain tissue analysis and reached a conclusion at sharp variance with the state findings.

“We are aware that authorities had questioned Marty’s home environment but we found no evidence of a role in his death,” the scientists said in a letter. “In our current view, Marty died from sudden infant death syndrome.”

That letter came months after the state drew its conclusions, and so was not part of the evaluation of the case. For Cross and her husband, the unresolved clash in findings redoubled their feelings of hurt and injustice.

How many parents of infants who die in this way face similar anguish and harsh judgment? Given the secrecy of medical and child welfare records, there is no way to know for sure. But a Boston Globe Spotlight Team analysis of state and federal records found that hundreds of women each year face blame in some form, if not in the child welfare or criminal justice system, then by the damning notations on death certificates suggesting unsafe sleeping conditions were a contributing factor in their baby’s death.

They are frequently held responsible in these different ways, despite the deep uncertainties about the causes of these infant sleep deaths. Autopsies aren’t definitive because they typically cannot distinguish whether a fatality was due to accidental suffocation or SIDS. And SIDS itself remains a medical mystery, a condition that leading researchers think may have a genetic basis, but nobody knows yet for sure.

In the extreme, parents who face this tragic loss have been subjected to criminal prosecution or other legal action; typically, these penalties come into play if there has been prior infant sleep death in the family or a pattern of substance abuse by one or both parents. The Globe has found more than 20 cases that involved such measures in the last decade in Massachusetts and other states, including Maryland, Ohio, Florida, Colorado, and Pennsylvania.

In Massachusetts, the Globe surveyed district attorneys’ offices and found two fathers who have been criminally charged in the co-sleeping deaths of their babies in the past five years.

Also emerging from the data: These tougher penalties appear to fall disproportionately on low-income parents, largely because they are far more likely to be investigated in the first place. More than three times as many mothers on Medicaid lose babies to unexplained infant sleep deaths than do mothers on private-pay insurance, according to a Globe analysis of federal data. Health specialists say this variance is likely due to risk factors commonly associated with families in poverty.

The Globe’s state-by-state analysis also shows that in the vast majority of states, the deaths of babies from Medicaid families are more likely to be attributed to suspected accidental suffocation or listed as needing more investigation — and in some states, by sizable margins. The deaths of infants born to families with private insurance are more likely to be attributed to SIDS, which is the finding most comforting for parents because it levies no blame.

The causes of this socioeconomic disparity are hard to know given the confidentiality of case files and the inconsistent ways that states complete death certificates in these cases. But the pattern raises questions about biases that investigators may bring to these cases.

“What’s it like when an investigator goes to a poor person’s home?” said Dr. Richard Goldstein, who heads the Boston Children’s program on sudden unexpected deaths of babies. Oftentimes, “they are cluttered, they’re not clean, everything’s old. That puts an investigator in a different frame of mind. People interface with poor people differently and blame them or feel like they made choices.”

Parents who present as more stable and affluent will more often be given the benefit of the doubt if something goes wrong with their children, say researchers who study health care disparities.

“That’s a pattern in society in general, that lower-income and people of color are disproportionately punished for everything,“ said Dr. Melissa Bartick, an assistant professor of medicine at Harvard Medical School, who studies breast-feeding and infant bed-sharing.

These harsh government actions also come at a time when there is increased evidence of parents sharing beds with their babies among families of all backgrounds, defying warnings against it from government health agencies and the American Academy of Pediatrics.

The co-sleeping movement is promoted heavily on social media as a way to nurture greater parent-child bonding, promote infant well-being, assist with breast-feeding, and help babies — and their often exhausted parents — sleep longer through the night. Even public health experts acknowledge that co-sleeping is a deeply entrenched practice in some cultures and communities, passed down from mothers to their pregnant daughters just as it was passed down to them.

The Globe also found that few mothers are aware of the potential legal repercussions of co-sleeping. Some attorneys for indigent families say parents facing such investigations should perhaps be read their Miranda rights or given access to legal counsel after a sudden infant death, as many, in their guilt-filled despair, may say things that will be used later against them.

The Globe review of these infant death cases found that parents who face government repercussions for co-sleeping often have struggled with addiction, anxiety, depression, poor health, or financial instability. These issues could be in their distant past, but they are often still judged a factor if their baby dies in bed with them.

Even if these parents’ sleep movements did tragically contribute to the death of the baby, those interviewed by the Globe say their treatment by authorities was cruel and left them feeling doubly traumatized.

It is a brand of trauma that hits a significant share of families who lose a baby in these kinds of deaths.

In Massachusetts, for example, one out of four parents or caregivers were cited for alleged neglect when their babies died during bed-sharing or other reportedly unsafe sleep conditions, according to review by the Globe of cases from 2015 to 2021 brought to DCF’s attention.

Such cases form a substantial share of all child fatalities investigated by the state. In the seven-year period examined by the Globe, more than one out of every three child maltreatment deaths — 31 of the 90 — were attributed by state officials to parents or caregivers who allegedly placed babies in unsafe sleep conditions.

Parents with limited resources can find it harder to challenge official conclusions after an infant death, even as they find them deeply unjust and painful.

“It was so wrong … the power they have in that moment of devastation,” said Joan, a mother in her 30s from a suburb south of Boston.

One of her infant twin daughters died while co-sleeping with their father on a couch in the winter of 2020. While the family gathered to grieve that night, child welfare workers knocked on the door and removed her older child and took her other 3-month-old baby from her arms. She lost custody of them for nearly a year and half, until, with the help of a lawyer, she got them back. Joan asked to be identified by her middle name to protect the privacy of her other children.

She was also cited by DCF for having her surviving twin in bed with her too that night. But she believes it was her past drug history — which she says ended in 2017 — that led to the state’s decision to remove her children. According to DCF records, the agency found both parents neglectful. The father and Joan have since separated and he did not respond to requests for comment.

Records reviewed by the Globe show there was no evidence the twins had been born exposed to any substances. Joan said she was addicted to opiates when she had her first child in 2017, but went into rehabilitation and was clean when her daughter died. She submitted records of multiple drug tests to prove it.

The removal of her children while she was newly mourning felt particularly unjust and crushing, Joan said.

“I am a mother and they stripped it all away and expected me to be OK and to prove to them that I was OK,” she said.

Are more-affluent parents also commonly subject to this sort of treatment by the state? There is no definitive data, but after reviewing dozens of infant death cases in the past years, the Globe found not one instance in which affluent parents faced the same close scrutiny and consequences as poor parents.

Instead, there are cases like May’s. A stay-at-home-mother who lived on the North Shore in 2017, she lost her son suddenly on a winter night that year. Even as she spiraled into grief, she worried about the child welfare investigation she knew would follow, but remembers DCF officials “handled us really gently.”

May and her husband, who didn’t want their last name used to protect the family’s privacy, were devastated by the death of their son; he was a dream come true. After a healthy pregnancy and a short labor, May, delivered an 8-pound boy. The birthing center allowed her, her husband, and their newborn to return to their four-bedroom house just hours later.

Then, during that first night, her son, who was in his crib in his room, started crying. Exhausted, May quickly Googled whether she could safely bring her son into the king-size bed she and her husband shared. The snippets she scanned, mostly of other parents offering advice, were just enough to make her think it would be OK. She said she didn’t remember getting any warnings against co-sleeping from the birthing center.

May fell asleep while nursing him, then woke up later that night and lifted her son from her breast. He was no longer breathing.

DCF interviewed her at her home later that week. She feared the social worker would find her lacking or negligent as a mother.

“There’s this life and it’s suddenly extinguished and it’s all pretty bleak basically,” May said.

Instead, as they sat in her airy suburban home, she found the worker respectful and careful. “Just one chat over the kitchen table sort of closed the investigation,” she said.

“We were treated pretty well,” her husband, a former diplomat, agreed. “They took one look at our home and it was nice. … It was clear that we didn’t have anything to hide. I think it was obvious it wasn’t neglect or abuse.”

The death certificate data from the state’s medical examiner would note “sudden unexpected infant death while co-sleeping in bed with adults.” In her case, she said, DCF did not find negligence.

DCF officials would not discuss specific cases brought to their attention by the Globe, citing privacy concerns, but said that the agency’s priority is to protect children. DCF authorities said that substance misuse is among the leading factors that brings parents to the agency’s attention, and is often an issue in these unsafe infant sleep deaths. State officials have also pointed out that Massachusetts overall has one of the lowest infant sleep death rates in the country.

“Unsafe sleep is one of the highest safety risks to children under age 1, especially when untreated substance misuse impairs the parents’ ability to care for the child,” said Andrea Grossman, a spokeswoman for DCF, in an email.

Abuse and neglect allegations are stressful, Grossman said, and the agency by law often must move swiftly in an emergency and complete its investigation within five days of receiving a complaint.

“Staff take great care to strike a balance between supporting families in their grief and pain and conducting a thorough investigation to make the best possible decisions about child safety with the information available at the time,” Grossman said.

SIDS — or what used to be called crib death — is a diagnosis of exclusion: Medical examiners and doctors often can’t explain why an otherwise healthy baby suddenly stops breathing, mostly in the first six months of life.

In the later part of the 20th century, a growing body of evidence suggested that infant sleep positions played a significant role in these deaths. At the time, the recommended practice was for babies to be laid on their stomachs so they wouldn’t choke if they spit up. But fears that the face-down position could at least partially block infant airways led to a public health campaign in the 1990s urging parents to put babies on their backs at bedtime. A sharp drop in infant deaths followed and continued through about 2000 — though whether the new sleep position recommendation was the sole factor in the reduction is unclear.

But for the past 20 years, infant death rates have stalled in the US. With disturbing regularity, some 3,400 babies die each year while sleeping — roughly 1 in 1,000 infants born each year.

Some researchers and medical examiners soon began to focus closely on the baby’s sleep environment and started to identify an increasing number of these deaths as cases of accidental suffocation.

Sometimes there is compelling evidence that a parent rolled over and accidentally caused the suffocation. But parents can also be blamed for the most fleeting of breathing obstructions: Under the pediatric community’s current prevailing theory, called the Triple Risk Model, a triggering event — such as a brief compromise of a baby’s breathing due to a parent’s body or other objects — can prove catastrophic for infants with an intrinsic vulnerability. It ignites a rare, but fatal, cascade of bodily reactions that leads tragically to death by SIDS. A death for which parents, if they are co-sleeping, may still be held to account.

Under this theory, most newborns are able to endure the brief airway interruption and rouse themselves, possibly by lifting their head to get more air. But for infants genetically or otherwise susceptible to SIDS, scientists believe such a brief breathing stressor can prove fatal. And to this day, many babies continue to die of SIDS, even when sleeping on their back alone in a crib.

These tragedies can happen within families rich or poor, but low-income women are far more likely to suffer the loss of their babies through a sleep death.

In 2021 alone, 2,680 infants whose births were covered by Medicaid, the government health insurance for low-income families, died suddenly and unexpectedly, compared to 740 infants whose parents had private insurance. Recent research has shown that the frequency of sudden unexpected deaths of Black infants was nearly three times as high as for white infants.

Public health officials are stumped about the reasons behind these extreme differences, though they have theories: Lower-income mothers more commonly have babies who are less healthy due to poor prenatal and postnatal care, get pregnant at a younger age, more often have a history of tobacco or drug use, and live in cramped housing conditions that limit separate sleeping surfaces. All are risk factors for these deaths. They may also have an underlying distrust of mainstream advice — including the warnings about co-sleeping — from a medical community that has often failed to serve them well.

“If you look at what those predictors are, they’re sort of predictors of poverty really,” said Peter Blair, a SIDS researcher at the University of Bristol in England. “It’s a vulnerability issue, I think it’s a poverty issue.”

It is difficult to be precise about how often parents’ behavior is implicated in infant sleep deaths, given the federal government’s complex system for assigning mortality codes that is based on the varying ways that states report these deaths.

For instance, federal authorities in a recent period attributed the overwhelming majority of Massachusetts infant sleep deaths to SIDS, the most sympathetic diagnosis for parents. But a Globe review of the death data shows three out of five of these cases included underlying notations of co-sleeping and other unsafe sleep conditions. In other states, cases involving similar risk factors were classified by local and federal authorities as accidental suffocation.

But even allowing for these uncertainties, a Globe analysis of about 16,000 infant deaths nationwide in a five-year period from 2017 to 2021 shows a small, but notable, pattern in the suspected causes of the child’s death: Families with private insurance are more likely to get a SIDS designation in their babies’ death certificate than accidental suffocation or undetermined. For Medicaid families — it’s the reverse.

The difference is 2.5 percentage points, which doesn’t sound like a lot, but given the thousands of infant sleep deaths in the federal database that translates into about 300 additional low-income families being implicated in the death of their babies.

Examining state-by-state data shows more extreme differences.

In South Carolina, for example, during that same five-year span, 40 percent of privately insured families received a SIDS designation after losing babies in sleep deaths, compared to 28 percent of Medicaid families.

In New England, Maine is a state where a high proportion of deaths are tied to parental behavior: In those five years, 32 out of 44 infant death cases were attributed in federal records to accidental suffocation; and of those, 66 percent involved women on Medicaid, significantly higher than the share of women on Medicaid who give birth in that state. Federal authorities did not report the number of privately insured Maine mothers whose babies’ deaths were attributed to suffocation because it was too small.

Brad Randall, a pathology professor at the University of South Dakota, said more in-depth research needs to be done on whether bias may underlie some of these disparities. Given the subjectivity of these death designations, the worry about bias is reasonable, Randall said.

“One of the things we were worried about is, you are in an affluent, white neighborhood, you’re investigating a death, if you call it SIDS it kind of means an act of God,” Randall said. “If you don’t call it SIDS, then you’re saying there’s a possibility that you, the caregiver, might have done something that increased the risk.”

Emily Cross keenly felt this brand of blistering judgment. She thinks she would have been treated more compassionately if she owned, instead of rented, her home on the Cape, if she could have afforded a housekeeper to keep her apartment tidy. Cross, who also suffers from attention deficit and anxiety disorders, has also relied on government assistance in some ways, including Medicaid for health insurance.

Some of her challenges, Cross said, “money would literally erase.”

Cross’s pregnancy with Marty had been draining. She was diagnosed with hyperemesis gravidarum, a severe form of morning sickness that can be potentially life threatening due to excessive vomiting and loss of fluid.

Records show she lost about 20 pounds, received hydration through an IV, and was prescribed Zofran, a medication that is also used on cancer patients to curb nausea. But the symptoms persisted, and, like a growing number of pregnant women, she turned to marijuana because it helped her eat by suppressing nausea.

Marty was born premature, weighing just under 5 pounds, but by the end of June a visiting nurse who came to their home every week reported “no red flags.”

“I was just on top of the world,” Cross recalled.

That evening, after giving Marty a bath, Cross went outside to smoke some marijuana, which she had used now and then over the years to help ease her anxiety. Then she went to the grocery store for food and a tub of diaper rash cream, while her husband stayed home with the children.

At bedtime, Cross set up two mattresses, side-by-side on the floor of her bedroom as she sometimes did. Her older son slept on one mattress; Marty slept on the other mattress, with her in-between. She thought it would be safer with just one adult on the bed, so Marty’s dad slept downstairs.

Before the birth of her older son, Cross had joined a 200,000-member Facebookgroup that extolled the joys of co-sleeping. For Cross, being close to her children, to hear them if they needed anything at night, offered her, and she believed her children, comfort.

Marty woke sometime before 2 a.m., and Cross breast-fed him and then his father supplemented it with a bottle-feeding. According to agency records, he placed Marty face up on the bed, away from Cross on the mattress and went back downstairs. That was the last time they know Marty was alive.

Guilt and questions haunt her. Should she have placed Marty to sleep that night in a bassinet they sometimes used? Was there some undetected biological malfunction that caused Marty not to wake up that morning? Did she fail as a mother to keep her son safe?

Authorities also dissected her decisions, according to child welfare records that Cross shared. They looked into her medical history and talked to her sons’ pediatrician’s staff. The DCF report noted that the parents were “understandably devastated,” that the house was “cluttered” with “dirty dishes in the sink and kitchen counter,” and that while the parents acknowledged sometimes using marijuana when questioned, “they did not appear under the influence” nor did the home smell of marijuana.

Police at the scene suspected co-sleeping may have been to blame. A local police lieutenant told DCF, “It is certainly a possibility, however, there is no forensic evidence to definitely identify this as the cause of death,” according to DCF documents.

Three days later, DCF found reasonable cause to support neglect complaints against Cross for her care of both Marty and her 3-year-old son. She knew about the risks of co-sleeping and the dangers of marijuana use, DCF said.

Cross turned for explanations to the Robert’s Program on Sudden Unexpected Death in Pediatrics at Boston Children’s Hospital, which is free for parents. She told Dr. Goldstein, the pediatric palliative care doctor who runs it, not to hold back the truth: Did she accidentally kill her son?

He pointed out that the toxicology report done during the autopsy found no cannabis in Marty’s system. The pathologists at Boston Children’s found evidence of vulnerabilities in Marty’s brain and lungs that are frequently reported in SIDS cases. What exactly killed Marty, however, remains a mystery.

Since Marty’s death, Cross has struggled to hold on to jobs and pay bills. When her 5-year-old, whom DCF eventually decided had not been neglected, suggested that they adopt a new baby, she told him, “I can’t. I’m on a list.”

After the devastating death of a baby in a co-sleeping environment, the state’s response is based on a number of factors, some subjective, including a parent’s prior involvement with child-protective services, history of drug use, and ability to take care of the other child.

At DCF, decisions are generally made at each of the agency’s more than two dozen area offices by a team that typically includes a social worker and their supervisor. Their approach to the probe can have a deep impact on families already shattered by the death of a baby.

Tatiana, a Dorchester mother, felt the brunt of judgment when her baby daughter unexpectedly died in 2015. The 1-month-old infant was sleeping on the same mattress with her, but was inside a flexible sleep “pod” designed for babies.

“I wasn’t treated like a mother,” said Tatiana, who provided only her middle name to protect her other children. “I was treated as a criminal.”

Tatiana, 25, said authorities pointedly asked whether she had harmed her child. She said she had not and that she was shattered by the loss of her daughter, with her unforgettable brown eyes and beautiful skin, soft and dark. She marks her daughter’s birthday each year with a visit to the cemetery.

Tatiana visited the gravesite of her 1-month-old baby who died while sleeping in the same bed with her in 2015. (Erin Clark/Globe Staff)

"Happy Birthday" balloons floated over the headstone of her daughter's burial site. The mother visits every year on the infant's birthday. (Erin Clark/Globe Staff)

She felt that the police prioritized their criminal investigation over her shock and grief. She was still in her teens at the time and desperately wanted her mother, whom she lived with, to accompany her in the police car that was following the ambulance with her infant daughter to the hospital. But authorities wouldn’t let her mother leave the apartment, insisting they needed her present as they gathered evidence and questioned the family as part of their investigation, Tatiana said.

“They failed me,” she said.

Some mothers, appalled that they never got the benefit of the doubt, have fought back.

A Berkshire mother in 2019 appealed a decision by DCF that found she was neglectful because she fell asleep with her 3-month-old daughter after feeding her.

The mother, who asked to remain anonymous to protect her family’s privacy, said that her daughter, who was born with a cleft palate, had been stuffy the night before she died. She was having more trouble than usual swallowing and the mother was up much of the night trying to console her infant.

That May morning she sat down in bed with her daughter and fed her a bottle. At some point, the mother fell asleep, and when she woke up sometime before noon, her daughter was next to her on the bed, face down, and no longer breathing.

“It was a horror,” she said. “She was my world.”

The mother said she did not usually co-sleep. Her daughter had a bassinet, a wicker one that was passed down from her grandparents, that sat near the parents’ bed.

DCF and police who came to investigate noted that the mother has a history of drug misuse, although she had not been using for more than seven years and her treating clinician reported no concerns, according to agency documents. They reported the house looked in disarray, but the mother said that was an exaggeration and that she had been preoccupied with caring for a sick infant that week. Authorities also noted that there were some clothes in the bassinet, an unusual occurrence, she said.

“The treatment we received from DCF was absurd, uncalled for, and permanently damaging to us,” the mother said. “As if the pain we endured in losing her wasn’t enough.”

The parents appealed through a quasi-judicial process, called a fair hearing, in front of a DCF hearing officer. In a small room at the agency’s Pittsfield office five months after their daughter’s death, the parents read from a three-page letter explaining what had happened.

They pleaded with the hearing officer to believe that they were good and loving parents.

In a decision issued five months later, obtained by the Globe, the hearing officer, Anna L. Joseph, agreed.

“A tragedy of this magnitude begs the assignation of blame, or at the very least an explanation. However, the cause of this tragedy remains unknown, both to the medical examiner and to the appellants,” Joseph wrote in her March 2020 decision. “The appellants’ loss and grief is incalculable, and should not be compounded by the department’s precipitous decision.”

Read the rest of this three-part series about the government’s questionable approaches to curbing co-sleeping and SIDS: Part two and Part three.

Liz Kowalczyk of the Globe staff contributed to this report.

Tips and feedback can be sent to reporter Deirdre Fernandes at deirdre.fernandes@globe.com. Or they can be sent to the Boston Globe Spotlight Team at spotlight@globe.com, or by calling 617-929-7483. Mail can be sent to Spotlight Team, the Boston Globe, 1 Exchange Place, Suite 201, Boston, MA. 02109-2132.

Deirdre Fernandes can be reached at deirdre.fernandes@globe.com. Follow her @fernandesglobe.