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Kennebec Journal/Morning Sentinel Online
Sunday, March 7, 1999

 Does DHS need repair?
Many complain about

By JOE RANKIN, Staff Writer
Copyright © 1999 Blethen Maine Newspapers Inc.

HAMPDEN - State Rep. Debra D. Plowman gets many complaints from constituents - hers and other legislators' - about heavy-handedness by the Department of Human Services child-protective system.

 They come by telephone. Fax. Now e-mail.

 "I am finding that my phone could ring off the hook 24 hours a day," she said. "I hear horror stories day in and day out."

 That is not to say she believes everything she is told. And Plowman is not saying the state should do away with its child-protection service. But she feels that the agency "needs to be reined in."

 It is likely that Plowman, a three-term Republican from Hampden and mother of three, gets so many calls because she is known as a critic of the agency.

 But other legislators report similar complaints, though in varying numbers.

 Rep. Joseph M. Jabar, D-Waterville, says he does not get many complaints. But in his own experience as a lawyer, he has found the DHS "very difficult to deal with."

 In one recent case, "they put all their resources against this family and I didn't think it was warranted."

 Rep. Shirley K. Richard, D-Madison, said one case in her district was "fairly poorly handled."

 "It was finally resolved, but not without a lot of consternation and difficulty," she said. "And it could have been done better."

 Despite complaints, the pace of DHS reform has been slow.

 Some critics say that might be because the people most likely to be abused by the child welfare system are poor and, therefore, do not have a lot of political clout.

 Others say politicians are wary about backing reforms for fear they will be perceived as anti-child.

 "Politicians who insult the bureaucracy have to be careful how they do it," said Lesley Wimberley, a legal consultant who works with law firms and state VOCALs (Victims of Child Abuse Laws) organizations. "They don't want to be accused of protecting child abusers or molesters. It's a politically slippery slope. It's difficult to get reform in the system."


Plowman has moved ahead, searching for ways to make the state's human services agency more humane. Among her successes: 

This year she introduced six bills on issues related to to the agency.

 Among them are proposals to:

  • Create ombudsmen who would investigate complaints about alleged agency misconduct.



  • Allow monitoring of social workers' phone calls with clients.



  • Partially strip away DHS workers' immunity from lawsuits.

  •  Plowman also is proposing legislation that would give grandparents standing in court, even after their own child's parental rights have been terminated, if a judge feels they have something to offer the youngsters.

     Plowman said her "quality listening" bill would allow supervisors to monitor caseworker telephone calls to determine whether they are being abusive, a common citizen complaint. It also would prohibit social workers from using cellular phones or their own personal telephones to conduct agency business.

     Another of her bills takes aim at what many consider a prime flaw in the child-abuse investigation process: the initial interview with a child.

     Under current law, agency social workers interview children as part of the investigation. The parents are not allowed to be present. The interview is later used as the basis for the department's case for removing children from the home.

     Plowman and others say those interviews - the ways questions are phrased, how they are asked, what the child is told - can drastically influence what a youngster says. The children often are interviewed later by counselors or therapists.

     "You will find there are children, asked the same question at different times by different people, who think, 'I'm not answering this right.' "

     Under her bill, children would be questioned by a professional interviewer and watched by parents, caseworkers and lawyers through a two-way mirror. Questions would be prepared and agreed upon ahead of time, and additional questions could be suggested to the interviewer through an earpiece. Interviews would have to be videotaped and copies made available to parents and others.

     Another Plowman proposal would require DHS to disclose to parents accused of abuse or neglect their court options and any evidence, examinations or anything provided by psychologists.

     Social workers are now immune from lawsuits. One of Plowman's bills would change that.

     It would allow people to sue DHS employees "when it has been found that an employee tried to deprive them of their rights under federal or state law or for personal motivation, including monetary gain for themselves or others, or for vengeful reasons," Plowman said.

     Plowman cited one case of a grandmother who sought custody of her two granddaughters. The DHS gave the woman custody of one child, Plowman said. When she pursued the issue in an effort to get the other child, caseworkers demanded to search the closets and cupboards in her home. She refused.

     "And she didn't get custody of the second little girl. It took me a year and a half to get her visitation rights," the legislator said. 

    Plowman said she also has a bill pending that would require the state to abide by the so-called kinship care provisions of federal law.

     Those provisions, under Title IV-E of the Social Security Act, require the department to consider giving preference to relatives when placing children in foster care.

     Citing the DHS' own statistics, available on a federal Department of Health and Human Services database, Plowman said the state places only 5 percent of children removed from homes with relatives, yet has one of the highest percentages of children who stay in foster care until they become adults - 28 percent.

     Plowman predicts the state Bureau of Child and Family Services will not greet most of the ideas with open arms.

     "They will say they're already complying with several. They'll oppose quality listening. They'll most likely oppose turning over all the evidence to the attorney. I don't know where they'll be on the interview process, though it's nothing new; it's done in other states," Plowman said.

     Some of Plowman's bills might get a boost from a legislative task force, which last December issued a report recommending some of the same reforms.

     Among them:

  • An ombudsman program staffed by independent nonprofit organizations.



  • Due process protection for parents involved with the child protective system.



  • An informational pamphlet for parents involved in the system explaining how the process works, their rights, and services available.



  • Adoption of rules for operation of the child protective system by Dec. 31.

  •  The 13-member task force said the lack of an ombudsman to field complaints about the child welfare system is a significant gap in services.

     Most families that get involved with the system do not end up in court or lose their children, the panel noted. But many are forced to comply with DHS orders: one parent may be forced to leave the house or to get counseling.

     As it now stands, there is no "formal due process mechanism, such as a fair hearing, by which the parent can challenge these conditions if he or she believes that they are inappropriate or not in the best interests of the child," the task force found.

     The task force also noted in its report that the Bureau of Child and Family Services has never adopted rules governing the operation of its child protective system, and spelling out what services are available and how people can apply for them. "The lack of written rules makes it difficult for parents to adequately understand their rights and responsibilities in that system," the panel said.

     The Legislature will consider Plowman's bills and the task force's recommendations later this year.


    Meanwhile, the state's judicial system is giving a higher priority to child-protective cases and designing changes that will make the system "more responsive and less adversarial," said Chief District Court Judge Michael Westcott.

     During the past year, the state court system has doubled the amount of time judges are spending on child-protection cases, to the equivalent of eight full-time judges.

     "That's a pretty big commitment," Westcott said.

     Legislative mandates have led to some changes now being implemented. Also, the District Court system wants to apply aspects of the new Family Court to child protection cases.

     The idea is to implement a case management system that is less adversarial and reduces delays that prolong the agony and uncertainty for both children and parents, said Westcott.

     Some of those changes already are in effect in certain courts. The court system is drawing up rules that will implement them statewide, Westcott said.

     The new rules will require a case management conference within 30 days of the filing of a petition. The parties, including the parents, will talk about services needed by the family and the risk of harm to the children. Parents will be able to give their side of the story, said Westcott. "They've never been heard before this fast," the judge said.

     Conferences will be required before any type of hearing to pinpoint areas of agreement and disagreement. And the rules will require firm dates to be set for the next step in the process. "Continuances will be damn hard to get," said Westcott.

     In line with a legislative mandate, courts will review each case every six months. Current rules require an annual review, said Westcott.

     The new rules will require the court to tackle the issue of alternate plans for the child's future earlier in the process. Parents will be told what they need to do to get children back and given time to do that, said Westcott. But at the same time, social workers and judges will be evaluating options - foster homes, adoption, or placement with relatives - that can be pursued they fail to fulfill their part of the bargain.

     "One of the most legitimate complaints people have about the system is that things drag on," Westcott said.

     Westcott said he is aiming for June 1 to put the changes in place.

     But critics maintain that the changes are not for the benefit of children or families, but for the players in the system. Gains in efficiency will be made at the expense of children, they say.

     "The case management system serves the needs of the court. It does not serve the needs of parents. It adds expense, complexity and unfairness to the system," said Larry Ouellette, the executive director of Maine Dads, a parents' rights organization.

     "The courts love it," Ouellette said. "But you've lost significant due process protections and significant opportunity to present and rebut evidence. Most importantly the case management system has stripped the process of the time needed to work out an appropriate resolution. They are simply fast-tracking the process in order to make the judges happy. They're harming children."

     Some critics say only state legislators can make the system better, and only if they become intimately acquainted with how it operates. That requires time, dedication and fact-finding outside the committee rooms. Time that many legislators don't have.

     Others say legislative and judicial tinkering with the system is unlikely to produce something more fair and just. They advocate a radical approach: "throw it out and develop something humane," said John Mitchell, a Calais lawyer who represents clients in DHS cases.

     That, however, is unlikely to happen. 

    Issues surrounding the child protective system are a "perennial issue in the Legislature. This is well-plowed ground, and it is a very, very difficult issue," said state Sen. Peter Mills, R-Skowhegan. "It is real hard to make it any better than it is.

     "Given the competing concerns -the parents' and child's right to privacy, the alleged perpetrator's rights, the department's need to act promptly with emergency powers -you wind up coming up with a system that looks like this."

     Tomorrow: Just how effective is Maine's child welfare system?

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