Maine fails to keep a family apart forever just because of poverty – but not for lack of trying

The Maine Supreme Judicial Court

Compare the trauma Maine family police inflicted on this family to the restraint shown by their counterparts in Ohio in a case with some remarkable similarities – and one huge difference. 

It turns out that even in Maine, you can’t reach thousands of miles into another state, tear a child from his mother, and then keep him away forever solely because the mother can’t afford an apartment in Maine. But not for lack of trying. It took years of court battles before Maine’s Supreme Judicial Court ruled unanimously last week that a lower court was wrong when it did exactly that. And even now, the ruling doesn’t mean the child necessarily will get his mother back. 

The case illustrates one of the many points the take-the-child-and-run evangelists are desperate to avoid: Even when a child isn’t taken because of poverty “alone” and even when, as in this case, the court itself concludes the mother has gone “above and beyond” to do everything demanded of her, poverty alone often is the reason a family is not reunified. At least three separate studies have found that 30% of America’s foster children could be home right now if their families just had decent housing. This is the story of one such family. 

In this case, it appears, Maine’s family police agency, the Department of Health and Human Services, strove to keep this family apart forever for two reasons: It was more convenient for the agency, and they were “comparison shopping” and liked the foster parents better. 

As the Maine Monitor put it in an excellent story about the case: 

The ruling highlights the ongoing debate in Augusta about whether Maine’s child welfare system too often conflates lack of financial resources with abuse or neglect, as well as Maine’s recent history of taking children into foster care at higher rates than other states. It also puts into stark relief the consequences of Maine’s affordable housing crisis.

The facts 

The mother, referred to in the decision as “Karen,” has lived all her life in New Mexico. Her son has autism and “exceptionally high needs.” But the mother had a support network in her home state, and no one in either state ever accused her of not meeting those needs. She was living in an apartment in New Mexico she paid for in part with a Section 8 housing subsidy. 

But in 2021, Karen took her son with her to Maine to meet in person a man she’d met online. The man had prior convictions for domestic violence and assault, but there is nothing in the court decision to indicate that Karen knew that. But Karen apparently figured out she’d made a bad choice. Then she made another bad choice and a good choice at roughly the same time. She got drunk. But she didn’t stay with the man. On the contrary, she called 911 and asked for a ride home to New Mexico. 

One can imagine the glee with which the foster-care-at-all-costs crowd will greet those facts. Substance use! Risk of domestic violence! Certainly not poverty alone! But, of course, if Karen had money, she could simply have called a rideshare, gone to a hotel with her son, sobered up, and caught a plane home the next day. I wonder how many rich people do something similar after parties in Hollywood or the Hamptons? Since Karen didn’t have that option, she had to call police, who called DHHS, which promptly took away the child. 

Special note to the take-the-child-and-run finger-waggers

Before you get too censorious about Karen, be sure to compare her case to this other case, from Ohio, in the news lately. Here, too, Mom could be accused of making a bad choice in men, picking someone with a long list of “allegedlies” in his past – all of which he denies. But she married him, had a child with him, and, if her allegations are correct, (and again, he denies them), he committed domestic violence against her – in front of their two-year-old child. 

Family police agencies routinely investigate such mothers and often take the children, for “failure to protect” because they “allowed” their children to “witness domestic violence.” If the allegations are true, one certainly could make a case that, with hindsight, this mother’s decisions were as bad as Karen’s. Yet in this case, it seems, authorities have shown commendable restraint. No news account mentions this young child spending so much as a day in foster care. Anyone care to guess why?

Now, back to Karen’s story. After rubber-stamping the removal of Karen’s child, the court then ordered Maine to contact its New Mexico counterpart, the Children, Youth and Families Department, to arrange a placement in New Mexico. It took more than three months, but the child eventually was returned to Karen in New Mexico, but still under the supervision of the Maine family police. 

About three months later, a Maine caseworker called Karen. Apparently, Karen sounded intoxicated, so the Maine worker asked New Mexico authorities to check. According to the court decision, CYFD “took the child into custody” – but refused to keep him. The decision doesn’t say why. But as the Maine Monitor put it: 

Maine’s child welfare agency disagreed with its New Mexico counterpart. It took the child and put him in a foster placement across the country in Maine and thousands of miles away from his mother.  

As the story notes, at the time Maine had much more of a hair-trigger for taking away children than New Mexico – though New Mexico since has gotten far worse. 

Along with custody came the usual cookie-cutter “service plan.” Karen did it all, and then some.  As the court decision explained: 

The mother has resided in New Mexico throughout this case, having been a resident for her entire life. As to the requirements of the reunification plan, the court expressly noted that she went “above and beyond” what she has been asked to do by [the Department] to address her own individual issues.” She has completed intensive outpatient programs for both substance abuse and mental health treatment, in addition to receiving a neuropsychological evaluation. She continues to participate in mental health counseling and regularly attends parenting classes. Further, the mother joined and actively engaged with a domestic violence support group. All her random substance screenings have been negative. 

The mother “remotely attends many of [the child’s] medical and service provider appointments” and has become involved in multiple organizations, in New Mexico and online, focused on autism. She has a safe, well-maintained apartment in New Mexico, that is covered by a housing voucher. 

So what was the problem? Before reunifying the family, Maine DHHS wanted supervised in-person visits and a trial reunification. And DHHS insisted, for some reason, that had to happen in Maine. But hey, it’s not like they didn’t help: They paid Karen’s airfare and lodging – for two whole days – so she could search for housing she could afford in Maine. 

Now, consider: Even if you think everything DHHS did up to this point was justified, even if you think the supervised visits and trial reunification were essential, that still leaves one crucial question: Why didn’t DHHS simply send the caseworkers to New Mexico, bring the child, and supervise the visits there? Why didn’t the caseworkers stay in a hotel while the trial reunification took place in Karen’s actual home? 

But no.  I guess that would have been too inconvenient. Instead, the failure to find that apartment in Maine in two days became the sole reason a trial court terminated Karen’s son’s right to his mother (a more accurate description than termination of parental rights). 

There was also the matter of the foster parents, who have received high praise throughout, which suggests DHHS simply liked them better. 

Fortunately, the Supreme Judicial Court didn’t buy it. As the Monitor story noted: 

The high court reasoned that the mother had faced an impossible “Catch-22”: Either move to Maine, lose her housing voucher and be found unfit because she didn’t have stable housing; or stay in New Mexico with stable housing but be found unfit because she couldn’t be in Maine to take part in in-person supervised visits. 

So the termination has been undone. But that’s all. (In a concurring opinion, two justices suggested that the court should have done more.) The court did not order the family reunified. It did not order the child sent back to New Mexico. Maine DHHS is free to keep right on, in effect, holding him hostage in the foster home they love. They remain welcome to keep trying to dredge up other grounds to keep them apart forever – as long as they don’t repeat the mistake of explicitly blaming housing. 

That means, of course, that now that the case has dragged on so long, DHHS can take the ultimate low road and try to play the “bonding card” – since their preference for the foster parents is so clear. 

At least it will not go back to the same trial court judge. She’s retired.