‘the mother was never given a chance’

“Maine has lost sight of parents’ and children’s right to be together”: The case of Barni A.

Fri, 05/31/2024 - 9:30am

    On July 26, 2019, Maine’s Department of Health and Human Services removed two boys from their parents’ care.

    A few months later, during which time the father died, a court ruled that the mother had failed to “parent in a consistent and predictable manner,” and did not have “safe or appropriate housing.” A judge agreed with DHHS that the mother had failed to “consistently meet the children’s medical needs,” according to a later court decision.

    Those medical needs were substantial for the younger of her two sons. The boy was born premature with a genetic abnormality and was prone to seizures. He was unable to chew or swallow due to “impaired neurological functioning” and required a feeding tube to eat.

    Under state and federal law, Maine’s Medicaid program, MaineCare, was supposed to pay for 24/7 private nursing for the child. But DHHS, which oversees both MaineCare and the state’s child protection services, never secured that care. 

    Instead, the agency moved to terminate her parental rights.

    This January, four and a half years after the removal, the Maine Supreme Judicial Court ruled the mother’s parental rights were unfairly terminated. The high court said the state could not terminate the parental rights of the mother — whom the court refers to as “Barni A.” due to confidentiality rules — based on her inability to care for her son without first providing her with the requisite medical care. 

    “The Department never provided the child with the services that he is entitled to receive, even though sufficient nursing care for the child may have enabled the mother to eliminate jeopardy and take responsibility for him,” the court wrote. 

    Julian Richter, president of the Maine Parental Rights Attorneys Association, called the decision “the most significant decision in the past few decades in Maine child protective law.”

    “It finally acknowledges some of the deficits in services that exist in the state,” said Richter, who filed an amicus brief in the case. “I think going forward, courts have to look at whether or not the appropriate services were available to families (…) They can’t just terminate parental rights because they didn’t provide services.” 

    A DHHS spokesperson declined to comment on the case, citing confidentiality laws. 

    Child protective cases are generally confidential, but because Maine Supreme Judicial Court decisions are public documents, Barni A.’s case provides a rare glimpse inside the opaque child welfare system

    Child welfare cases typically only enter the public sphere when they reach the criminal justice system, often because of horrific allegations of child abuse. These cases tend to generate criticism of DHHS for not doing enough to remove kids from their parents or caregivers before the violence.

    The Barni A. case highlights a different problem: when parents are deprived of their rights and their children unnecessarily. 

    The most recent federal data shows Maine is investigating and removing children at a rate higher than the national average. It was one of just two states that increased the number of children it took into foster care between 2018 and 2022.

    “Everyone in the child protective bar, and the budget writers and decision-makers in the two other branches of government, needs a reminder: termination of parents’ and children’s right to be together is the last resort,” said Rory McNamara, the appellate attorney for Barni A., during oral argument before Maine’s high court. 

    “This case shows the state of Maine has lost sight of parents’ and children’s right to be together.”

    Questions of care 

    The court’s published decision provides little information about Barni A.’s youngest son or how the department came into contact with the family, and the legal briefs in the case are confidential. But the oral arguments offer some clues.

    Hunter Umphrey, the assistant attorney general representing the department, told the court that when DHHS took Barni A.’s sons into custody in 2019, the younger child was six months old and weighed just seven pounds. 

    The court record indicates that Barni A. worked hard to get her children back. She secured stable housing to accommodate the necessary medical equipment, participated in mental health services and attended the children’s medical appointments. 

    A counselor who treated Barni A. noted that any parent would be overwhelmed by what she faced: “a sick child, the death of her husband and an ongoing pandemic crisis.” As a result, the counselor said Barni A. “never had a full opportunity to learn the child’s medical needs and meet them,” according to the decision.

    The youngest son was sent to a foster family after being removed from Barni A.’s care. The family’s mother provided “extraordinary care,” the court wrote. “The resource family can also care for and attend to the child at all hours.” The record seems to indicate the foster family had nursing support in the home, up to 60 hours a week, but not the 24/7 care the child was entitled to receive. 

    In March 2021, the state returned Barni A.’s older son to her for a trial home placement. It went well enough that in late September, the department moved to dismiss the older boy from the case, and a judge agreed.

    With one son back in her care, Barni A. may have started to hope she was on her way to getting the other child back, too. 

    But one week later, the department moved to terminate Barni A.’s parental rights to her youngest son. 

    ‘Somebody should have done it’

    A year and a half passed before the matter went before a court. 

    During that time, Barni A. was supposed to have visitation rights with the boy, but the court record indicates those visits rarely occurred. 

    “Visitation time with the child was substantially limited throughout the case,” the court wrote. In multiple instances, many months passed between visits, but not because Barni A. wasn’t making an effort. Initially, visits were canceled due to the pandemic. Later they were canceled because the department could not find nurses to attend the visits, which typically occur at a third-party site. 

    Because of the confidential nature of the case, it’s unclear what arguments Barni A.’s attorney made during that time. But the record indicates the attorney never made the case that Barni A. needed the nursing care her child was entitled to before her rights could be terminated — this argument only arose when the case reached the high court.

    In oral arguments, Umphrey, the assistant attorney general, argued that Barni A. would not have been able to parent the child regardless of the care provided, in part because “her cognition is very limited.”

    (In its decision, the court noted that an initial evaluation “flagged concerns” about the mother’s cognitive function, but the department “never followed up to determine whether the mother has an intellectual disability.” If the department did make that determination, it would have been obligated to give the mother more help, not less, and “provide services to the mother to manage the child’s needs,” the court wrote.)

    Umphrey argued that if Barni A. could have been a fit mother with the nursing care in place, “it would have come up at a family team meeting or a judicial review.” Umphrey noted that no one raised the issue over seven judicial reviews — then Justice Joseph Jabar cut him off. 

    “Somebody should have done it,” Jabar said. “The attorney should have done it, or the state should have done it under their reunification plan.”

    As the court notes, DHHS does not provide nursing care itself, but reimburses providers through MaineCare. However, “it is still the Department that sets the rates that directly impact service capacity, and it is still the Department that manages the system and arranges the provision of these services by other entities,” the court wrote. 

    It’s one of many services that DHHS has struggled to supply in recent years, despite being legally required to do so.

    Gaps in services

    In June 2022, the Department of Justice concluded an investigation in Maine that found the state was failing to provide children’s behavioral health services in the community and at home.

    Instead the state was unnecessarily putting children in psychiatric hospitals and residential treatment facilities. The children were “separated from their families and communities” in violation of the Americans with Disabilities Act, the Justice Department wrote in a letter to Gov. Janet Mills and Attorney General Aaron Frey. 

    The DOJ found that Maine had lengthy wait lists for behavioral health services, forcing families to “wait hundreds of days to receive services at home,” which meant they often turned to law enforcement and hospitals for help. Children with behavioral health needs were sent “to out-of-state residential facilities all over the country,” the Justice Department noted. 

    A DHHS spokesperson disagreed it was in violation of the Americans with Disabilities Act. The agency has, however, implemented DOJ recommendations and taken steps to address the gaps in services, including using $20 million in state and federal funds to “to accelerate and intensify implementation of Maine’s comprehensive children’s behavioral health plan.” 

    “The Department is building upon initiatives launched under the Mills Administration to improve and expand the Children’s Behavioral Health Services continuum of care, with a focus on making appropriate services available to children with behavioral health needs in their communities,” DHHS spokesperson Lindsay Hammes wrote in an email. 

    When the DOJ announced its findings in June 2022, 753 children were waiting for home and community-based services, according to the DHHS children’s behavioral health data dashboard. That number declined to 509 by March 2024, the most recent month with available data. 

    The office in charge of children’s behavioral health needs was the Office of Child and Family Services, which also investigates child protection cases, initiates child removals and moves to terminate parental rights. 

    In January, DHHS announced a restructuring that moved children’s behavioral services into the Office of Behavioral Health. 

    DHHS is continuing negotiations with the Department of Justice. Maine is one of 21 states the Department of Justice has found in violation of Olmstead v. L.C., a 1999 Supreme Court ruling that held that segregating disabled people in institutions violates the Americans with Disabilities Act because they have a right to live and receive services in their communities.

    “As far as I know, there are no states that are managing the entire system appropriately,” said Diane Smith Howard of the National Disability Rights Network. 

    A systemwide failure

    Not only did DHHS never provide the services that Barni A.’s son was entitled to receive, the court record indicates the agency didn’t even try.

    The department made “vague references” to staffing shortages related to the pandemic, but “there is nothing indicating that the Department made any attempt to secure 24/7 nursing care, or anything close to it, for the child,” the court wrote. “Inadequate resources do not excuse a state’s obligation to provide benefits under Medicaid.”

    In February 2023, a three-day judicial review was held on the department’s petition to terminate Barni A.’s right to parent her younger son. On March 1, the court agreed with the department and ruled her unfit.  

    A litany of actors in the child welfare system failed to argue the state had to provide services before removal.

    This indicates a systemwide failure, said Lauren Wille, legal director of Disability Rights Maine, which filed an amicus brief in the case. 

    “You’re talking about judges, guardians ad litem, the attorney general’s office, department caseworkers, all of these people and it doesn’t seem like anyone raised this as a problem,” Wille said. “It really signified for us the real need for education for all of those stakeholders when it comes to people, whether it’s parents or children, who have disabilities.” 

    The Maine Supreme Judicial Court’s decision is not the end of the road for Barni A. The high court sent the case back to the district court to reconsider the case in light of its ruling.

    “We encourage the court, the mother, and the Department to explore alternatives to termination that do not put the child at risk but that recognize the Department’s obligation,” the court wrote. 

    For Jabar, the former Maine Supreme Judicial Court justice who authored the court’s decision, what’s striking about the case is that instead of attempting to secure nursing services for the child, the state infringed upon Barni A.’s constitutional rights. 

    “Before the constitutional right to parent is taken away, there are certain steps that have to be taken. And one of them is to provide services to the parent,” Jabar told The Maine Monitor

    “In some cases, parents are not able to take care of a child, even with medical services,” he said. “But in this case, the mother was never given a chance.”