Diana Ross of Ware, Mass., expected the remaining weeks of last summer to be sleepless -- she had just had a new baby. What she didn’t expect was that those sleepless nights would be spent frantically worrying about the whereabouts and well being of her son, which the Massachusetts Department of Social Services took from her without warning Aug. 6 when he was just a day old.

The nurses who took her son from her arms in the hospital room told her they were taking the baby for routine tests, but she never saw him again. The neglect that warranted Aaron Ross being placed in foster care were charges that Ross was not holding him or his bottle properly during feeding.

The hospital staff did not voluntarily file a neglect report on Aaron; they were ordered to by DSS who was aware that Ross was about to deliver. The nurse who filed the report noted in Ross’ medical records that the form was "sent to DSS per their request. DSS aware we are unable to establish neglect in such a short period of time. Form sent regardless."

Anyone hearing of Ross’ case would automatically assume that there was more to the story, and they would be right.

Ross was on the DSS radar because the state already had taken her two older children, toddler sons Kyle and Damien. The boys were placed in foster care in 1999, when Kyle, then 3-years-old, was found sleeping in the family car after he'd been wandering outside. It was not the first time Kyle or Damien had been discovered wandering about the neighborhood unattended, so the state took her kids.

In June, two months before Aaron was born, Kyle was mauled to death by his foster parents’ Rottweiller. Ross has filed a wrongful death suit against the state.

Ross, a single-mother living in poverty, was struggling, and perhaps failing, to meet her responsibilities as a parent. . But was that neglect severe enough to take her children, and was she any worse a parent than the foster parents that left Kyle untended with a vicious dog? Was her home more dangerous for her children than the foster home in which Kyle died?

Such questions are at the crux of what family activists and watchdog groups say is a key flaw in how the state deals with cases where physical or sexual abuse is not an issue: They don’t consider if the kids will actually be worse off in the foster system.

But the Massachusetts Department of Social Services sees the Ross case as an example of the difficult judgment calls they have to make daily. DSS Commissioner Harry Spence said that on the numerous occasions when Ross' sons were found wandering the streets, their mother was not even aware the children were missing.

If the department made a mistake in the Ross case, he said, it was a failure to consider the safety issue of a dog in the foster home--not in the decision to remove the children from a situation in which they were dangerously unsupervised. What happened to Kyle, he said, doesn't make Ross a better parent or her custody any safer.

"A terrible tragedy has occurred," Spence said, adding that his department will now factor in pets and animals in evaluating potential foster homes. "We have to be more careful than the parents. We've learned that lesson. But that doesn't mean that the new child would have been any safer with that mother," he said.

Ross’ attorney, Greg Hession, believes DSS took Aaron because Ross was suing them over Kyle’s death and is fighting them for custody of her middle child, Damien, who also remains in foster care. But Spence said Ross' history of neglect with Kyle and Damien gave the state the legal grounds to take Aaron.

"If a mother has a history of neglect, the department may intervene (one behalf of new children.) We have a responsibility to the next children not to say, let's wait and see," Spence said.

In an August hearing, the judge ruled against returning Aaron to Ross. A trial set for March will determine if the state can terminate her parental rights to Aaron and Damien. Meanwhile, both boys remain in foster care.