Lawyers, advocates call DHS system flawed

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

CALAIS - As a lawyer in a small eastern Maine town for more than 20 years, John Mitchell has represented hundreds of families who have been drawn into the machinery of the state's child-welfare system.

The Calais attorney is not victorious very often. But he often is frustrated with a system he maintains is out of control, mocks the protections of law and tramples on the rights of people - mainly the poor.

Staff photo by  DON WATERHOUSE Regional offices of the Department of Human Services are located on North Street in Skowhegan.

In Mitchell's lexicon, the system is a "kangaroo court," a "totalitarian system" in which the only jury is a judge and all the proceedings are secret.

"It's not an adversarial proceeding," Mitchell said. "It isn't constrained by the rules of evidence. It's an inquisitorial process that makes the Spanish Inquisition look like a ballet. There's nothing right about it, except that incidentally they do keep some kids from being abused."

While Mitchell is harsh in his criticisms of the state's child protective system, he is not alone.

Other lawyers, legislators and activists have similar complaints about a system they see as running amok. And the chorus of criticism seems to be getting louder.

Several reform bills are pending in the Legislature, and a legislative task force recently advised the Department of Human Services to set up an ombudsman system to handle complaints.

No one is saying the state does not need a child-protective system. But critics say the state needs one that is more open, fairer and more humane.

CONCANNON RESPONDS

Human Services Commissioner Kevin Concannon reacted angrily when asked about criticisms of the child welfare system.

Complaints, he said, come mainly from "people willing to say in the press what they're not willing to tell a court."

"It's the rare family that comes forward and says I did molest my child or neglected to adequately supervise that 2-year-old playing in traffic," Concannon said.

There is deep opposition in many quarters to the state's ability to take children away from their families, Concannon said. He denied accusations that some department caseworkers are overzealous.

"I'm not saying we're perfect. But in the majority of cases I'm confident our people are conscientious and our efforts are reviewed by the district courts and there are lawyers appointed for the children," Concannon said.

The child protective system melds the Department of Human Services' Bureau of Child and Family Services with the state's judiciary system.

Child protective workers act on tips about alleged child abuse or neglect.

They investigate the accusations and interview the parties involved. If caseworkers conclude that the children are in immediate jeopardy, they can ask a District Court judge to order their removal from the home, or to limit one or both parents' access to the children.

No one has to be convicted of anything for that to occur. The child welfare system is a civil one -standards of proof are lower than the "proof beyond a reasonable doubt" required in criminal courts. A judge simply has to find that abuse or neglect occurred based on a "preponderance of the evidence.

If social workers don't believe the children are in danger, they're supposed to make sure services are provided to help the family deal with its problems.

14,909 REFERRALS IN '98

The Bureau of Child and Family Services received 14,909 referrals for abuse and neglect in 1998. In 2,792 of those cases the existence of abuse or neglect was substantiated, according to Bureau statistics. At any given time the Bureau has custody of about 3,000 Maine children.

Investigations are prompted by tips from teachers, family members, day-care providers, guidance counselors, neighbors and police.

Sometimes the accusations stem from marital disputes or relationships on the rocks, say those familiar with the system.

"An evaluation at school flags something, some sort of behavior, as aberrant. And very often these screeners have no training other than to identify abuse," said Larry Ouellette, the executive director of Maine Dads, a parents' rights organization.

Ouellette, a mental health counselor, said he became involved in parents' rights issues because he saw clients traumatized by the DHS child-protective process.

He says those parents and children are caught in a "bureaucratic meat grinder."

"The full force of the state of Maine is engaged to support and defend a suspicion raised in an initial screening," he said.

While emphasizing they don't intend to paint all caseworkers with the same broad brush, critics say too many workers abuse the power they have over families, and are too heavy-handed in pursuing cases and making parents jump through hoops to keep their children or get them back.

"In some cases, they have good caseworkers who do a good job and go out of the way to be fair," said Kevin Joyce, a Farmington attorney who represents parents in child protective cases. "There are some ... who are very zealous and really believe they're doing the right thing. And then parents' rights just get thrown out of the way."

FEELING HELPLESS

For Waterville attorney M. Michaela Murphy, child protective cases constitute the "most frustrating work I've ever done as an attorney. After a while, it became apparent there was very little I could do for my clients.

"That's the reason I stopped doing those cases. I felt powerless to help my clients at all. It was difficult to deal with social-worker ideologues. They assume if you question what a child says you approve of family violence. I would much rather deal with the criminal system. Police officers are more up-front and honest about their job than social workers. They know that people sometimes lie, including children."

Many legislators say they receive regular complaints from constituents about abuse at the hands of the agency's representatives.

State Rep. Debra Plowman, R-Hampden, a mother of three who is spearheading the legislative campaign to rein in DHS, says she "hears horror stories day in and day out."

Plowman calls the agency itself vindictive. With some social workers, she said, "it's almost personal."

"You lose out if you try to fight," she said. "The best thing - not the thing I recommend - is to say, 'Yes, I'm in denial. I want services. I need you folks.' "

Said Farmington attorney Walter Hanstein: "It's a tough system. Because if you start out on the wrong foot, people get under the gun. DHS wants to hear people say they're sorry, and that they'll follow all these conditions."

Vocal critics of DHS are not alone in observing that the system is in need of change.

Lucky Hollander, a former child protective worker, is president of the Maine Association of Child Abuse Councils and executive director of the Cumberland County Child Abuse Council.

The councils are independent, nonprofit organizations that train people in recognizing child abuse and provide support and education for families. They get some DHS funding, but most of their money comes from other sources.

"Of course the system is in serious need of reform," Hollander said. "I can't imagine anyone in the system half the time I've been in it who says, The system works; end of discussion.' "

In addition to providing services for families, the councils also fields complaints about the child protective system and tries to mediate solutions between caseworkers and complaintants.

The most common complaints: lack of services, not knowing one stands in the system, and inability to get information from caseworkers.

"The biggest reform I would make, if I were queen of the mountain, is to make sure every parent has an advocate," Hollander said. "Even if a parent is a significant abuser, they have to be helped to negotiate the system, just like a criminal does."

AN IMPERFECT SYSTEM

Child welfare system administrators and judges defend the system, while acknowledging that it's not perfect and that there are problems.

However, it's hard to tell how many families feel they've been abused by the system, much less how many of those complaints are valid.

>From 1989 to 1992, the state had a child welfare services ombudsman whose job it was to tackle citizen complaints. In the first nine months of its existence, the program received 162 complaints. The program was suspended in 1993.

The Bureau of Child and Family Services said in response to written questions from the Morning Sentinel that it has fired one caseworker for "having an inappropriate relationship with a client" but no child protective caseworkers have been fired, suspended or disciplined for abusing clients' rights.

Margaret Semple, director of the Bureau of Child and Family Services, said the agency "doesn't have all these mythical powers" and maintains that the system is structured to protect the rights of family members as well as children.

"Human Services has no ability to make people do anything. Only a court can order it," she said in a telephone interview. "Our preference is to straighten out the problem if we can, and not go to court. If a parent doesn't believe the family has a problem, they can say, 'Scram.' At that point we have to look at the evidence and decide whether we should ask for a court order to protect the child."

The Morning Sentinel also submitted a list of 47 questions to Semple, who provided written responses to most of them.

Repeated efforts by the newspaper to schedule a second in-depth interview with Semple were unsuccessful. Her administrative assistant said Semple was either in meetings or involved in preparing or giving testimony for legislative committees.

Child protective services is "not without some challenges. We have them," Semple said. "The people in the department are people, doing the best they can under sometimes difficult circumstances.

"People scream at you, spit at you, curse at you. It's a very highly charged, highly emotional field. People get angry. They get cranked up. They get involved," she said.

'HOT BUTTON'

Some child protective cases can be terrifying, if not sickening, Semple said.

"We're not talking about people who spank their kids. We're talking about broken bones, cigarette burns. About people who kill their kids' pets in front of them so they won't talk about sexual abuse. There's some bad stuff going on out there."

Semple acknowledges the anti-DHS sentiment: "We're talking about kids, and about government intrusion in family life. And that's a real hot button with a lot of people."

Judges also acknowledge that the system has its imperfections. They also point out that they, not caseworkers, make the decisions, and all parties have the right to an attorney, even if they cannot afford one.

"I have never had the feeling that it was weighed in favor of the Department (of Human Services)," said District Judge James MacMichael. "I've had a lot of parents who have said that. But those were cases where I thought they were wrong."

Cases involving removal of a child from the child's home are serious, said MacMichael.

"You certainly don't want to leave a child in the home where it's going to get hurt. If ... a judge hears two different versions of events, they have to look at other aspects of the case, and rely on professionals who have examined the child and given psychological tests to the children. We have to distinguish the truth. I think we do it best if we have as much information as possible."

But critics say that in practice, judges rely heavily on the testimony and recommendations of caseworkers in deciding whether to put children in state custody or revoke parental rights.

They say attorneys appointed to represent families often cannot afford to put in the necessary time on a case because the pay is so low. Too many are unacquainted with the intricacies of child-custody law and too many simply are beaten down by fighting a system that is weighted against them, they said.

James LaBrecque, an activist who lives in Bangor, says federal regulations requiring the state to make "reasonable efforts" to keep families together and to consider placing children with relatives rather than strangers in a foster home are ignored too often.

Even attorneys say that the poor too often take a pounding in child welfare cases while those with the money to bring a lawyer into the case in its early stages fare better.

"The whole case starts on a different level. You instantly have a little bit more of a voice going into the case," said Joyce, the Farmington lawyer.

But even then, compared to criminal cases, child protective cases often move at a glacial pace.

TOMORROW: DHS critic claims federal laws are being ignored.