Jan. 6—When Molly Owens became a lawyer, she knew she wanted to represent those who needed her most.
So about 10 years ago, she took the necessary training and joined a roster of private attorneys willing to accept court-appointed work — including parents who were at risk of losing custody of their children to the state.
She said she quickly learned these families are often misunderstood. Many times, Owens said, she has seen the child protective system hurt her clients more than it’s helped them.
“I couldn’t possibly overstate the impact on families,” Owens said in a recent interview. “There’s a fear that attaches and a trauma that attaches that doesn’t go away.”
Owens, who has worked in Washington and Hancock counties, was hired in September to lead the state’s new Parents Counsel Division for the Maine Commission on Public Defense Services. As Maine moves toward creating a more traditional public defense system, relying less on private attorneys to step up and do indigent work, she is helping set up an office to exclusively represent parents in child protection matters.
Like almost every other type of case moving through Maine’s judicial system, parental cases rarely have enough lawyers to take on a client who can’t afford an attorney on their own.
According to data from the courts, judges were seeking lawyers in more than 100 parental cases across the state as of Friday. But only about 25 attorneys were available to take them, roughly a quarter of the number available two years ago. And most cases required at least two attorneys, since each parent is entitled to a representative of their own.
Some attorneys have retired or are no longer practicing. Others have had to take on less work after the commission enacted new caseload standards.
“My message, really, is that this will take some time,” Owens said.
As she slowly builds out the new office, Owens said she wants to lay down the foundation for a system where attorneys aren’t working alone, but have colleagues to lean on and strategize with. She wants a team who will challenge the status quo.
Tackling the state’s list of unrepresented parents will be a priority for her division — but she can only hire three attorneys to start, and in the meantime, the Department of Health and Human Services, embroiled in its own crises over protecting children, continues to file new cases.
Several attorneys who represent parents told the Press Herald that they feel the department is filing more petitions than the system can handle. The Office of the Maine Attorney General, which represents the state when DHHS chooses to file a petition, was unable to provide yearly data in time for this story.
These attorneys described their work with both passion and exhaustion. They have represented parents who want the best for their children but are often in crisis, they said, many dealing with domestic violence, mental illness, substance use disorder or serious poverty. Yet research shows that removals can have negative long-term consequences on children and their development.
Child protective workers also have raised concerns with their agency’s capacity to handle more cases. There aren’t enough placements for children after they’ve been removed. Some are waiting in hotels.
“It is indicative of the fact they are removing too many kids,” said Julian Richter, an attorney in Bath and president of the Maine Parental Rights Attorneys Association. “It’s just creating more trauma for the kids. You’re not considering the off-set there, whether could they have been safer in their own home.”
‘WE BELIEVE IN THIS WORK’
Any time the Office of Child and Family Services, which is overseen by DHHS, files a petition for a child protection order, Maine parents are legally entitled to an attorney at no cost and a hearing within 120 days to challenge the department’s case.
Oftentimes, the state will also request to immediately remove the child from their home. In those cases, parents are entitled to a faster hearing within one to two weeks to establish whether there’s an immediate risk.
These orders typically include an attorney’s name and contact information. That way, the parent can get started on mounting their case, which is more urgent if there’s a request for immediate removal. If a parent would rather work with the state and make changes for a safer home, then attorneys can help them navigate mental health services, substance use treatment, housing aid and other programs. They can also demand help from the department.
But as Maine struggles to find attorneys, judges are increasingly leaving that section of their orders blank. Still, even without representation, the department is allowed to remove children, and crucial court dates that will determine when they can come home are being delayed.
In one parent’s case, Richter said a mother waited two months for an immediate risk hearing.
“And I think that’s not an uncommon situation at this point,” Richter said. “Especially when a kid has been removed, that’s when you’re really talking about a constitutional crisis of sorts.”
As of Jan. 3, there were roughly 115 child protective cases that needed lawyers. Some of those cases date back as far as April. More than half were added within the last two months.
When Lewiston courts needed help finding attorneys for about 55 parents in Lewiston last fall, Taylor Kilgore said she went through each of their files and appealed to her peers to take them on. She found counsel for 21 parents.
“We hate seeing that list,” said Kilgore, an attorney who has represented parents and children in Turner. “We do this work because we believe in this work. Seeing that list regularly and seeing there are parents without counsel is heartbreaking for us, and it is infuriating.”
ONE OF MANY ISSUES
As the state’s child welfare ombudsman, Christine Alberi investigates complaints from various people who come into contact with the system and releases an annual report to lawmakers.
Alberi hears often from parents whose children have been removed. But it wasn’t until the last year or so that she started hearing more about lawyers.
She said she is concerned that children are spending more time away from their parents because court dates keep getting put off. Without a lawyer, many parents don’t know whether they can still see their kids or maintain contact. Parents’ attorneys are often the ones who apply pressure on the department when it struggles to arrange supervised visits.
“Visitation, is probably the most important part of the reunification process,” said Alberi. “It’s most important for the kids. Regardless of anything else, the kids love their parents. And it’s really key that the kids see their parents and understand they haven’t been abandoned, it isn’t their fault. The visits are really, primarily, for the children.”
Robin Upton-Sukeforth, a union representative for the state’s child protective workers, said her members are feeling unprecedented levels of stress.
There are more children in state custody now than ever in the last 20 years, hitting about 2,500 in September. And because court cases take longer to process when parents are unrepresented, this is only adding to their work.
“You’re putting the kids in limbo,” Upton-Sukeforth said, speaking for a handful of caseworkers who did not want to be interviewed. “I can’t imagine having a kid in limbo for that long.”
Caseworkers have been under a lot pressure after several recent high-profile child deaths in homes where parents had been investigated for abuse or neglect.
Attorneys who have represented parents say those cases are the exception. They feel too much effort has been placed on encouraging overworked caseworkers to be more aggressive, instead of increasing in-home behavioral health services.
“What a lot of people don’t understand is that it’s incredibly scary when the department knocks at your door and says, ‘We need to see the inside of your house and talk with your child in the next 24 hours.’ Anybody who has kids is going to be unable to function in that moment,” Richter said.
STRUCTURAL CHANGE
As lawyers, caseworkers and families endure the growing crisis, the Parents Counsel Division’s work will depend on what Maine is willing to invest.
Owens hired her first staff attorney on Thursday and is still taking applications for two others. It’s unclear where the attorneys will be based.
Public defense is still relatively new to Maine, which didn’t launch its first office for criminal cases until late 2022.
She hopes that her team will create systemic change.
Similar agencies in other states, including the Children and Family Law Division of the Massachusetts Committee for Public Counsel Services, say they have successfully expanded parents’ rights.
In one 2017 case, the Massachusetts Supreme Judicial Court sided with CAFL and ruled that the state must show it made “reasonable efforts” to avoid separating children. When the department hasn’t done that, a judge can issue orders to accelerate the reunification process.
In another case from 2021, a judge agreed with CAFL that parents are allowed to request a hearing when they believe Massachusetts has failed to make reasonable efforts to reunite families. In that case, the state had ordered a mother to take parenting classes and complete a neuropsychological evaluation. The department had resources available to help her, but they didn’t connect her with a provider who spoke Somali Mai Mai, her primary language.
“They definitely have moved the ball forward in terms of giving our attorneys more arguments to push against the department not making efforts,” said CAFL’s Deputy Chief Counsel Daniel Mahoney.
Attorneys representing parents in Maine are hopeful that the new division will be successful. But even if the state had a lawyer for every parent, some say the system would still be flawed.
“We need to be putting the energy into all of the parts for it to get better,” said Kilgore, the attorney in Turner. “Some of them just get caught in the system, and some of them are just trying to do the best they can with what they’ve got. If we want to fix those problems, we have to give them resources.”
Copy the Story Link