Thursday, January 6, 2022

Maine’s child welfare ombudsman is dangerously wrong

Maine's first child welfare ombudsman, Dean Crocker, understood
the lessons from the tragic death of Logan Marr, who was taken
when her family poverty was confused with "neglect" and killed
in foster care.  The current ombudsman, Christine Alberi, does not.

● In a classic example of trying to make policy-by-horror-story, her latest report uses a tiny, non-random sample of cases she chose herself to justify sweeping conclusions that all boil down to: Take away more kids and don’t send them back!  That is making all Maine children less safe. 

● She is wrong about domestic violence, she is wrong about truancy, she is wrong about “alternative response,” she is wrong about false reports and she is wrong to call for more institutionalization of children.  Most of all she is wrong to ignore the enormous harm of needless removal. 

● At a time when the entire child welfare field finally is coming to grips with issues of poverty and race, she puts out a report that mentions neither. In the entire report the word "poverty" does not appear even once.

● For the sake of Maine's most vulnerable children, any legislation to give her more power and staff should also include a requirement that she use objective evaluators and base policy recommendations only on a statistically valid random sample of cases.  The office also needs a more representative Board of Directors. 

● But ultimately, we all need to be the ombudsman.  In Maine and elsewhere, the ombudsman’s power is fed by secrecy.  For starters, Maine should join the many states in which child welfare court hearings are open. 

How could a state like Maine, a state that once almost got child welfare right, keep careening full-speed backwards.  How is it that no one has stopped a foster-care panic that has undone reforms that once were a national model; a panic that has made all of the state’s children less safe? 

There are many reasons, and I have discussed them on this blog and elsewhere before.  But one reason is the state’s child welfare “ombudsman,” Christine Alberi.  She issues reports with shamefully shoddy methodology that throw gasoline on the fires of foster-care panic.  Judging from Alberi’s latest report, she has never, ever encountered a case in which she believes a child was wrongfully taken.  At a time when almost everyone else in the field is discussing the confusion of poverty with neglect, Alberi has managed to issue a 20-page report that never once even uses the word poverty.  Also missing: The fact that even in an overwhelmingly white state, there is evidence of racial bias in Maine child welfare. 

Unfortunately, Alberi’s approach is not unusual.  As in many states, legislators in Maine effectively delegated responsibility to hold the child welfare system accountable to one person – an “ombudsman” or “child advocate.” 

Back in 2007, on this blog, I wrote about the typical behavior of people filling such posts: Investigate horror stories and jump to conclusions based on those horror stories that boil down to: Take away more kids.  

Though ombudsmen generally have no formal powers aside from the ability to investigate and report their findings, their influence is enormous.  That’s because in systems more secret than the CIA, they get to see everything – or at least a lot more than everyone else outside the child welfare agency sees.  (It doesn’t actually have to be that way, as I’ll explain below.)  So almost the entire view of the system seen by journalists and lawmakers is whatever the ombudsman wants them to see – and very little more.  It’s like trying to figure out who and what is in a large room by looking through a pinhole. 

In report after report Alberi zeros-in on what she views as poor decision-making at two key stages of the process: The decision to remove children from the home and the decision to return them home.  But by poor decision-making, she never seems to mean that it was a poor decision to take away a child. 

The ombudsman’s report defies common sense 

Common sense tells us there will, in fact, be a lot of poor decision-making at these points.  But common sense also tells us that, for reasons noted above, the bad decisions will go in all directions.   It is ludicrous to think that, in a system filled with underprepared overloaded workers rushing from case to case all of the errors would go in only one direction. 

Yet any reader of Alberi’s latest report who took it at face value would have to conclude just that.  Because, as Alberi tells it, the only mistakes made by Maine child welfare caseworkers are to leave children in dangerous homes and return them there. 

She is dangerously wrong. 

The errors go in all directions, and all of these errors harm children.  

● Wrongful removal inflicts profound psychological trauma.  Although DHHS caseworkers almost always mean well  - as does Alberi by the way – the trauma when a child is torn from everyone loving and familiar in Maine is just as severe as when it happens on the Mexican border.  

● Wrongful removal places children at serious risk of abuse in foster care itself, where independent studies find rates of abuse far higher than agencies such as DHHS admit in official statistics.  

● And all the time, money and effort wasted on false allegations, trivial cases and poverty cases is, in effect stolen from finding children in real danger.  In short, the foster-care panic encouraged by Alberi’s whole approach actually makes more likely the very failings Alberi cites. 

Alberi’s latest report draws her sweeping conclusions from a tiny sample of cases – the 84 her office chose to accept in 2021.  But Maine caseworkers investigated nearly 12,000 cases in 2021.  While it is reasonable to draw conclusions based on a sample, 84 is a far smaller number than, say, the typical “case reading” done to assess agency performance when such agencies are the subjects of class-action lawsuits.

Even worse, this is not a random sample.  Rather it is those cases Alberi and her assistant personally deemed worthy of investigation – and the criteria for choosing a case can be startlingly subjective.  They include, for example, “the demeanor and credibility of the caller.”  Really?  Suppose your child had just been torn from your arms and you were desperate for help.  How would you be doing demeanor-wise? 

Another criterion: “The degree of harm alleged to the child.”  But an ombudsman who doesn’t even mention poverty is unlikely to consider a case in which a child was taken because of poverty – such as Logan Marr -- to be terribly harmful.  Rather the focus will be on the much smaller percentage of cases that allege sexual abuse or serious physical abuse. 

And so, based on this tiny, skewed sample, Alberi offers broad, sweeping conclusions and examples in which, in every single case, she concludes, the error was to leave a child in the home or return a child to the home.  It should be clear that this is absurd on its face.  

Alberi’s whole approach is so absurd it leads me to write a sentence I never thought would appear in this blog: In some respects, Todd Landry is right. 

Landry runs the Office of Child and Family Services within Maine’s Department of Health and Human Services.  His hiring is, frankly, inexplicable.  He had a horrible track record when he ran child welfare in Nebraska – under his leadership that state was worse than Maine, tearing apart families at one of the highest rates in America, and his callousness could be astounding. 

But Alberi’s methodology is so absurd even Landry sees through it.  In his office’s response to the Alberi, he writes:


Rather than a random sample, a case review begins with self-selected inquiries and is often complaint driven. … 

A source of disagreement for a number of reports relates to the Ombudsman’s finding or recommendation that involves bringing children into State care or keeping them in care for a longer period of time. While OCFS recognizes the perception that children are safer when removed, the evidence overwhelmingly shows that removing a child from their home has the potential to inflict harm or trauma. In addition, there is little research to support the belief that, in general, children who enter state custody are safer than they would be if they had remained in the home with efforts undertaken to address safety concerns. There are numerous scholarly articles regarding the potential harm of removal. 

As I said, on this Todd Landry is right.  When you look at the typical cases OCFS and its counterparts across the country handle, not the tiny, self-selected sample used by Alberi, the research shows children typically fare better in their own homes, even when agencies don’t have much help to offer.  

Alberi’s examples 

All of this still gives Alberi a huge benefit of the doubt: It assumes that Alberi is right about those 84 cases.  But often we have no way to know that.  In summarizing 40 of the 42 cases (out of the 84) that Alberi says raised “substantial issues,” she offers only a short paragraph on each one.  Sometimes that’s enough to make clear that in the specific case, Alberi is right – the child should not have been left in the home.  (If one believes, as I do, that the errors go in all directions then of course there will be such cases.)  Others are less clear.  One summary, in its entirely states: 

A parent had significant mental health issues and the inability to protect the children from domestic violence. Throughout the case, despite the fact that the parent was engaged in treatment, the treatment was not effective. Providers were not objective and recommendations in a psychological evaluation were not implemented. After a significant period in state custody, trial placement began and then it was discovered that the parent was still in a relationship with the perpetrator. Trial placement was not ended. In general, the parent’s level of treatment did not match the severity of the illness. The risk to the children remained high. 

Note first that there is no allegation that the children themselves were abused.  Rather they witnessed domestic violence.  When children are taken for that reason the trauma for the child is actually worse than other forms of removal. That’s why taking children for that reason is illegal in New York City as a result of a class-action lawsuit. (NCCPR’s Vice President was co-counsel for plaintiffs.)  One need only read the outstanding investigative journalism from USA Today to see how much such removals hurt children – and discourage battered women from leaving their abusers and seeking help. 

Thus, an objective ombudsman would have questioned why the children in this case were removed at all. 

Now, let's go through this paragraph sentence-by-sentence.  

Throughout the case, despite the fact that the parent was engaged in treatment, the treatment was not effective. 

Alberi offers no evidence for this, but even if true, there is more than one approach to therapy – why not recommend trying another? 

Providers were not objective and recommendations in a psychological evaluation were not implemented. 

How do we know providers were not objective? Because they didn’t do what Alberi thinks they should have done?  As for “psychological evaluations,” like so much else child welfare agencies and their subcontractors do, they can be cookie-cutter and unreliable.  Maybe in this case the providers were right and whoever did the “psych eval” was wrong.  Maybe it’s Alberi who is “not objective.”  We don’t know, and nothing in Alberi’s single paragraph tells us. 

After a significant period in state custody, 

That should have been the red flag here – why were the children taken, apparently for witnessing domestic violence, when that is so enormously harmful to children? 

trial placement began and then it was discovered that the parent was still in a relationship with the perpetrator. 

This shows only Alberi’s lack of understanding of the dynamics of domestic violence.  There are all sorts of reasons this might happen – including, by the way, poverty.  Why didn’t authorities act to remove the abuser by arresting him and jailing him? 

Trial placement was not ended. In general, the parent’s level of treatment did not match the severity of the illness. The risk to the children remained high. 

Risk of what?  Presumably witnessing domestic violence again.  That is a serious and real problem.  But removing children for that reason can be even worse.  One expert calls taking away children under these circumstances “tantamount to pouring salt into an open wound.”  But Alberi seems to want OCFS to adopt a policy that boils down to: Please pass the salt. 

It is possible that there is a reasonable explanation for all of this, and a detailed look at the case file and interviews with all involved would reveal that yes, in this case there was no other option but removal.  But we don’t know that based on Alberi’s one-paragraph summary.  And it would be a huge mistake for media and lawmakers to simply take Alberi’s word for it. 

A bizarre call to institutionalize more children 

Alberi also does not seem to be up on the research about institutionalizing children in so-called residential treatment centers.  So I’ll summarize it.  It doesn’t work.  Period. Full stop. 

There is nothing that residential treatment does that can’t be done better using Wraparond programs that bring whatever help a child needs directly into his own home or, when genuinely necessary, a foster home. 

One of Maine’s biggest successes was its significant reduction in the use of this worst possible option.  Yet Alberi apparently wants to reverse course.  At one point she writes: 

There are not enough therapeutic foster homes, not enough high-quality residential treatment facilities, and a general lack of mental health resources for both young and old.  [Emphasis added.] 

But “high-quality residential treatment” is an oxymoron – it doesn’t exist.  Get the children who don’t need to be in foster care back into their own homes, emphasize wraparound services and there will be plenty of good, safe, therapeutic foster homes for the children who really need them.  Maine already has proven it. 

The differential response obsession 

Alberi seems oddly obsessed with a program that barely exists in Maine and soon won’t exist at all.  Differential response, known in Maine as “alternative response” in Maine is one of the most-studied approaches in child welfare, it involves diverting low-risk cases to agencies that offer voluntary help.  At any time if that agency thinks the case is too serious they can send it back to caseworkers for a full-scale investigation.  More than two-dozen studies have found that this approach safely reduced foster care.  But in state after state, it’s become a convenient scapegoat after high profile fatalities.  But generally, once the system caves in and gets rid of differential response the bashing of the program stops. 

But even though  OCFS is phasing out the program; indeed it barely exists, Alberi is still bashing it. 

Here again, I’m sure there are indeed high-risk cases that have been wrongly diverted to differential response.  But at noted study after study shows this is far from the norm and that differential response reduces the trauma of needless foster care with no compromise of safety.  

The fact that Alberi continues to beat this nearly dead horse is still another indication of how profoundly she seems to believe that child welfare agencies must be police forces, constantly harassing and surveilling families and taking away their children. 

Wrong about truancy 

At one point,  Alberi writes that  “truancy of children as a sign of risk is underestimated.”  That’s because truancy generally isn’t a sign of risk.  Oh, I’m sure Alberi has horror stories, but she seems unaware of the comprehensive landmark study by the highly-respected Vera Institute of Justice – a study that included yes, a representative random sample of cases. 

That study found that having agencies like OCFS pursue “educational neglect” allegations – i.e. truancy – does far more harm than good.  Truancy is not, in fact a “gateway allegation” – some kind of sign of more serious evil afoot.  Indeed, the Vera report recommended that if truancy must be part of a child protective agency’s portfolio it should be handled through – differential response. 

Wrong about unsubstantiated reports 

At one point Alberi writes: 

When [multiple encounters with OCFS] result in unsubstantiated assessments or [alternative response] referrals, the lack of child abuse and neglect findings is mistakenly thought to be evidence of safety. … It is not well understood that the existence of many reports and assessments alone elevates the risk to children. 

No, what is not understood by Alberi is that false reports almost always are just that – false.  They are so flimsy they don’t even rise to the minimal level required for an OCFS caseworker to check the “substantiated” box on the form.  By Alberi’s logic there is no such thing as a false report: Call it in often enough, harass a family with enough false allegations and, by the Alberi standard, you must assume the child is at high risk. 

Many reports do not elevate the risk to the children (except to the extent that they may increase stress on the family).  Rather, they are a form of self-fulfilling prophecy.  Precisely because Alberi and so many others encourage workers to believe that “where there’s smoke there’s fire” workers become predisposed to check the “substantiated” box.  Multiple unfounded reports elevate not the risk of child abuse but the risk of spurious conclusions and system involvement.

In child welfare, where there’s smoke there’s usually just smoke.  And nobody can see clearly through smoke. 

But what about that whole section – sorry, one paragraph – about prevention? 

“But you don’t understand,” I can imagine Alberi saying, “I’m for prevention.”  Sure.  Have you ever known anyone to say they’re against prevention?  And, after all, Alberi devoted one entire paragraph of her report to saying prevention is a good thing. She even concludes the one paragraph with: “The fact that services and resources for families are minimally discussed in this report should not discount their importance.” 

But, of course, that’s precisely what devoting one token paragraph to some general concept of prevention in a 20-page report does.  All the more so in a report that doesn’t mention poverty and portrays a system that only errs by keeping families together. 

Even the lip service paid to prevention doesn’t say what kind of prevention she has in mind.   But given that Alberi can’t even bring herself to mention poverty it’s likely she has in mind only the kind of prevention that makes the helpers feel good – lots of “counseling” and “parent education,” instead of what’s needed most: Concrete help to deal with problems like housing, childcare, and other issues of poverty. 

It doesn’t look like OCFS gets this either. Their response emphasizes the vastly overhyped federal Families First Act – which allows federal funding for only a few, very limited types of prevention – mostly of the counseling and parent education variety. 

What to do instead 

Unfortunately, Alberi is treated with enormous deference by some lawmakers and media.  So there has been one proposal after another to give her office even more power.  There are better options: 

● Ideally, everyone should be the ombudsman – and yes, that can be done.  Everyone should be able to see how the state child welfare system really works in every case.  For starters, Maine could open court hearings in child welfare cases.  More than 40% of America’s foster children live in states where these hearings are open and none of the fears offered by opponents – who also are the people who don’t want us to see what really goes on -- has come to pass.  In addition, there should be a strong rebuttable presumption that most records are open.  There is a detailed discussion of how this would work, without compromising children’s privacy in NCCPR’s Due Process Agenda. 

As soon as courtroom doors open and legislators, journalists and citizens can sit in on the day-to-day process, they will see for themselves what the typical cases are like.  They will see how often the crucial issue is poverty and how often that poverty is confused with neglect.  They also will see the kind of mistakes Alberi highlights.   But once we see that the errors go in all directions and those errors are related – wrongful removal overloads systems so workers have less time to find children in real danger – it changes completely our understanding of how to fix it. 

It is within the Legislature’s power to do this.  Of all the comments I’ve heard or read concerning Maine child welfare in more than 20 years, perhaps the weirdest was this from a Maine State Senator: 

“By law, the department can’t share a lot of information, so our ability to provide oversight is limited.” [Emphasis added.] 

By law, you say?  Hmmmm. And what is it that legislators enact, repeal and amend? 

Now, in fairness, it’s possible that this lawmaker was referring to a federal law, the Child Abuse Prevention and Treatment Act.  Perhaps DHHS told him CAPTA made it impossible for the agency to share information. 

But there are two problems with that: 

-- CAPTA has lots of wiggle room.  A state that passed a law allowing legislators themselves to see records, for example, should have no problem with CAPTA.  And there is no question that CAPTA allows open courts. 

-- The penalty for ignoring CAPTA is almost nil – the forfeiture of a very small amount of federal funding – so small that the costs of complying with CAPTA may be greater than the costs of ignoring it.  

● Failing that, at least reform the ombudsman’s office.  As I said, most ombudsmen operate like Alberi.  But there are exceptions. Maine’s first ombudsman, Dean Crocker, was one. He understood that the errors go in all directions and he supported the reforms that helped make Maine, briefly, a child welfare leader.  He even wrote a guest post for this blog.  Another was Kevin Ryan, who ran New Jersey’s Office of Child Advocate.  Even when dealing with horror stories, Ryan’s office turned out careful, nuanced reports.  But he also realized that just focusing on the horror stories was inherently distorting. 

So he decided to review a random sample of cases.  And to ensure objectivity he recruited reviewers from two groups, one with a mentality much like Alberi’s, the other more attuned to issues of poverty.  They then had to reach consensus:  That consensus – yes, the system errs, in all directions.  

The Maine Legislature should require that the Maine ombudsman’s office take the same approach – examine a random sample of cases each year and examine enough of them to be representative.  A panel of experts, diverse not only in race and class but in viewpoints, should be named to review the cases and issue reports. 

The ombudsman should be barred from drawing systemic conclusions based on self-selected individual cases. 

-- The Board of Directors for the ombudsman’s office should be reconstituted to include representatives from all of the groups that have a stake in keeping Maine’s children safe: The board should include one of the sate’s leading family defense attorneys, one its leading child abuse prosecutors, a parent who lost children to the system, a foster parent, a grandparent or other relative providing kinship foster care, a former OCFS caseworker, the director of a domestic violence shelter, leaders of civil rights organizations for Black, Latinx and Native American communities in Maine, at least one leader of an anti-poverty organization, and at least two current or former foster youth. 

-- Every member of the Board and every staff member should be required upon appointment/hiring to watch the PBS Frontline documentary “The Taking of Logan Marr” and to read the letter Logan’s mother Christy sent to the foster mother who ultimately would kill Logan. 

The context 

A retreat from reform is tragic anywhere, but especially in Maine since, as I noted at the outset, Maine is a state that almost got child welfare right. 

In 2001, After five-year-old Logan Marr was taken from her mother when the mother’s poverty was confused with neglect only to be killed by a foster mother who also had been a supervisor for OCFS, lawmakers and media refused to accept the usual pat answers about licensing, training, etc.  They zeroed-in on the appallingly high numbers of children the state routinely took away. 

A new governor, John Baldacci, brought in new leadership that rebuilt the system to emphasize safe, proven approaches to keeping families together.  Foster care numbers declined significantly.  When children had to be taken, as noted earlier, far fewer were institutionalized and far more were placed with relatives.  The reforms became a national model. 

But another new governor, Paul LePage, slashed the agency budget and demanded a return to the take-the-child-and-run approach.  He doubled down after two deaths of children known-to-the- system in rapid succession in 2018.  That started the foster-care panic – the sharp sudden increase in the number of children torn from their families. 

But the deaths didn’t stop.  Of course they didn’t.  A foster-care panic often is followed by more child abuse deaths because workers are so overloaded with false allegations, trivial cases and poverty cases that they don’t have time to investigate any case properly.  So they make terrible errors – yes, in all directions.  

Yet with another new governor in office, Janet Mills, and four more deaths in rapid succession in 2021, lawmakers and Maine’s child welfare establishment still didn’t learn.  They doubled down again.  

Partly that’s because the Mills administration chose Landry to run child welfare.  Partly it’s because, between term limits for lawmakers and consolidation in the news media, a lot of institutional memory has been lost.  Maine has largely forgotten the lessons from the death of Logan Marr and the time when, relatively speaking, Maine was a child welfare leader. 

Nevertheless, it puzzled me that even in Maine, lawmakers could so easily be taken-in by an approach that had so demonstrably failed over and over.  Now I understand. 

Everyone is paying way too much attention to Christine Alberi.

And here’s the thing: Had Alberi and her office been around when Logan Marr first was taken, and had her mother, Christy, called looking for help, I’ll bet Alberi would have turned her down. 

She probably wouldn’t have liked Christy’s demeanor.