Lawmakers will appeal court ruling denying access to child protection records

Jan. 13—The Legislature's powerful Government Oversight Committee voted Friday to press forward with its effort to gain access to confidential child protective records amid an inquiry into the state's child protection services triggered by a series of deaths in 2021.

Committee members voted 6-4, mostly along party lines, to appeal a superior court ruling supporting the Mills administration's position that lawmakers are barred from looking at those records. The court agreed that those records can only be provided to the state's watchdog agency, the Office of Program Evaluation and Government Accountability, which then reports its findings to lawmakers.

The appeal will place the dispute in the hands of the Maine Supreme Judicial Court. It comes as pressure continues to build on both the Legislature and the Mills administration to respond to a spike in the number of children who have died after contact with the state protection system or as a result of abuse.

Most Democrats on the oversight committee said time would be better spent drafting a bill to expressly allow lawmakers to view those records as the committee continues its investigation into the Office of Child and Family Services. But Republicans argued that no one could guarantee that such a law would pass.

"I want to show the public how seriously we take this and that sense of urgency that we have," said Rep. Amy Arata, R-New Gloucester, arguing for the appeal. "I want to be very clear in that respect."

Sen. Craig Hickman, D-Winthrop, who co-chairs the committee, joined Republicans in supporting the appeal, saying he disagreed with the ruling and couldn't see why legislators who wrote existing state law would have prohibited themselves from being able to review confidential records when conducting oversight of state agencies. "I'm inclined to support the motion to appeal because the ruling suggests that this is a matter of interpretation," Hickman said.

Jackie Farwell, spokesperson for the Department of Health and Human Services, responded to the committee vote by saying "we again look forward to the court's resolution of this issue so we can advance our vital work with partners throughout the state to protect Maine children from abuse and neglect."

The vote came about a week after the latest scathing report by the state's independent child welfare ombudsman, who annually reviews a small percentage of child protective cases based on complaints from parents, family members, and members of the public.

Despite years of focus on the issue and assurances from state officials that new training and programs were being rolled out to address issues, Ombudsman Christine Alberi reported a "downward trend in child welfare practices" that continue to put children at risk.

MILLS GETTING INVOLVED

It also comes as Gov. Janet Mills has signaled her intent to become more directly involved in the issue.

Mills said in a recent interview on Maine Public's "Maine Calling" program that she would like to discuss the ombudsman report with Alberi and child welfare caseworkers who are on the front lines before offering any critiques of the current system or comments on the report.

"I want to get on the ground and find out what's going on," Mills said.

Maine reported that more children died in 2021 from abuse, neglect, or in households that had prior involvement with the child protective system than in any year on record.

In all, the state has reported that 30 children died in Maine in 2021 after having contact with the state's child protective system or as a result of homicide, abuse, or neglect. Four more children who died in 2021 are expected to be added to that count after the courts resolve ongoing criminal cases. At least 27 of the children had some sort of child protective history before their deaths, according to state data.

OPEGA Director Peter Schleck said his staff has reviewed over 22,000 confidential documents relating to four child deaths in 2021 — Jaden Harden, Hailey Goding, Maddox Williams, and Sylus Melvin — that occurred in a short period and prompted the ongoing investigation. Schleck said he's planning to present a full report to the oversight committee next month about the death of Goding, whose mother, Hillary Goding, was sentenced to 19 years in jail after pleading guilty in September to manslaughter.

In her supplemental budget adopted last year, Mills made an $8 million investment in child protective services, strengthening the ombudsman's office and increasing the number of caseworkers to help reduce caseloads and the reliance on mandatory overtime to handle cases on weekends and holidays. She said this week that about 60 caseworker positions remain open.

The governor's new budget proposal for the next two years includes $15 million in new funding for rate increases for foster and adoptive families.

Lawmakers also are submitting their own bills to address the issue. Sen. Joe Baldacci, D-Bangor, is looking to create an office of inspector general for the child welfare division, while Sen. Jeff Timberlake, R-Turner, has submitted a bill that would remove the Office of Child and Family Services from the massive Department of Health and Human Services.

SYSTEMIC REFORMS PROPOSED

And placeholder bills for systemic reforms also have been submitted by Rep. Michele Meyer, D-Eliot, and Senate Minority Leader Trey Stewart, R-Presque Isle.

Alberi said her office found "significant issues" with more than half of the 83 cases, involving 162 children, that it reviewed last year. She found that 46 cases were handled in a way that negatively impacted the safety and interests of the children or rights of the parents.

Her report included summaries for 17 different instances in which child welfare supervisors and caseworkers, who together decide whether a child should be removed from a home, failed to fully investigate a complaint of abuse or neglect, or failed to remove a child from clearly dangerous homes.

Those summaries include:

— An infant who was left in a home after the state received reports of one parent committing domestic violence against the other parent, including strangulation, reported spanking of the infant, and untreated mental health issues. The investigation was closed as unsubstantiated, but another case was opened only months later after additional domestic violence in the presence of the infant was reported.

"The infant was then left in the custody of the parents for a further eight months, despite multiple safety plans being violated, and no evidence that the parents had engaged in treatment, acknowledged the issues, or made behavior changes," Alberi found. "The child entered state custody."

— In another case, two children who experienced "serious neglect" were held in state custody for nearly two years without a petition to terminate parental rights. They entered custody after an infant was "found to have serious, inflicted head injuries." Additional safety concerns were reported during unsupervised visits with the parents, who were allowed to see the children even though the abuser was never identified.

— And two children who suffered years of severe neglect were reunited with their parents even though the parents "showed no remorse and did not accept any responsibility for the serious harm done to the children." After custody was restored, additional evidence of abuse and neglect emerged, but the case was dismissed and closed without further court action.

PARENTAL OBSTRUCTION CITED

The Office of Child and Family Services said in its response to the ombudsman that investigations are hampered by parents who refuse to cooperate with investigations, saying court orders need supporting evidence that is difficult to gather without parental consent.

The office also said it was working on a plan to provide better training and support for supervisors — an issue that was flagged by both Alberi and in internal reviews by the department.

Farwell, the DHHS spokesperson, said the department also is submitting legislation to explicitly allow hospitals and medical providers to share information with law enforcement during child abuse investigations.

Both the department and the ombudsman acknowledge that common threads throughout child abuse and neglect cases are poverty, substance misuse, and untreated mental health issues. Rep. Maggie O'Neil, D-Saco, voted against appealing the lawsuit over records, saying the committee should instead focus on the underlying factors of child abuse and neglect.

"We have spent a lot of time discussing downstream issues," O'Neil said. "I think that it would be more valuable for our committee to also — as we conduct oversight about these downstream issues — move upstream and begin to discuss prevention because what I want to see is families not getting in this position in the first place."