Over the past month, state lawmakers have considered a slate of bills that would change the way Maine’s child protection system defines abuse and neglect — a definition that influences the number of families that get pulled into the system. 

The debates around each piece of legislation centered on concerns that Maine is unnecessarily investigating poor families and, in some cases, removing children for symptoms of poverty that are unfairly classified as neglect. 

While cases of horrific child abuse make headlines and often drive the conversation around child protection, 74 percent of all child removals in Maine are due to allegations of neglect, according to the most recent federal data. The national average is lower, at 62 percent. 

Maine has removed children at a higher rate than nearly every other state in recent years. This is despite the growing consensus that placing children in foster care can cause more long-term harm than the alleged maltreatment at home.

Nationally, the foster care population fell 15 percent between 2018 and 2022. In Maine, it rose nearly 40 percent during that time, reaching a two-decade peak last year. 

And while Maine is taking more children away, the state hasn’t had the resources to meet its obligation to provide families it is investigating with lawyers, services or quality casework. 

In 2023, Maine had the second-highest rate of child maltreatment, behind only Massachusetts, according to federal data. But that statistic doesn’t necessarily mean that Maine parents are maltreating their children at higher rates than parents elsewhere. Instead, it indicates Maine has a broader definition of what constitutes abuse and neglect.

The debates in Augusta suggest a shift in how some of the state’s lawmakers are approaching Maine’s embattled child welfare agency. Some appear willing to embrace a view pushed by advocates and adopted by other states: that child protection services must “narrow the front door.”

By investigating fewer cases — and offering support instead of traumatizing children by removing them from families who are struggling with poverty, addiction or mental illness — advocates argue that overburdened child protective services can better identify cases of serious abuse and neglect.

“If we want to reform child welfare to make the system safer and more just for children, it starts with limiting the scope of what constitutes neglect,” Sen. Craig Hickman (D-Kennebec) told the health and human services committee last month. Hickman is the Senate chair of the legislature’s government oversight committee, which has spent years investigating Maine’s child protection system, including four high-profile child deaths.

“If we want to find the needles in the haystack that child fatalities represent, given the constraints on the system, the answer needs to be to make the haystack smaller,” Hickman said.

Previously, lawmakers seemed resistant to that idea. However, as federal data increasingly show Maine is out of touch with the rest of the country, and as advocates for parents and families become increasingly vocal in Augusta, that could be changing.

“It appears that maybe there’s more of an interest or an appetite for the legislature to hear from the other side,” said Molly Owens, chief of the parents’ counsel division of the Maine Commission on Public Defense Services. “It seems like for quite a long time, the various committees were, at least predominantly, hearing from the Office of Child and Family Services, or DHHS, or the Attorney General’s Office about child protection stuff.”

“And I think that’s reflected in the statutes we have now,” Owens said.

‘A system of family surveillance and regulation’

The Health and Human Services Committee voted on two competing bills aimed at revising the laws that define abuse and neglect. 

The bill that moved out of committee would clarify that the inability to pay for food and other necessities should not, on its own, be considered child neglect.

A competing bill also sought to create exceptions for poverty, but went further, eliminating a relatively unique statute that gives the state the ability to remove children if it is believed they are at risk of abuse or neglect in the future. It also would have required DHHS to show in court that they tried to get the family services, such as therapy, addiction services or behavioral supports for children, as opposed to referring them to services that may or may not be available.

It’s unclear to what extent either approach would reduce the number of investigations or children removed from their families. 

On April 25, the Health and Human Services committee voted unanimously in favor of L.D. 1406, which clarifies that failing to provide food, clothing or other necessities to one’s child is only neglect if “that person is financially able” to do so, or “is offered reasonable financial means” to do so. More than half the states have a similar exception.

The bill follows the Biden administration’s 2024 request that states update their child maltreatment definitions to make clear that poverty is not, by itself, neglect. Instead of seeking to remove children in poverty, the administration said, “The state should first seek to help the family.” The bill was supported by a coalition of stakeholders who had developed it, led by DHHS.

Some parents’ attorneys and guardians ad litem, the attorneys representing the best interest of the child in child protection proceedings, said they thought the bill wouldn’t do much to move the needle. 

“L.D. 1406 doesn’t really get us anywhere,” said parents’ attorney and guardian ad litem Elizabeth Shardlow. “It feels good, but that’s the problem with working with all of these different stakeholders: you have to appease the department, you have to appease everyone else.”

“I’m not saying there’s not space and necessity for those sorts of negotiations,” Shardlow said. “But at the same time, it doesn’t fix the problem we’re trying to solve.”

Instead, Shardlow and many colleagues favored a competing measure from Senator Hickman.

“The child protection system has become a system of family surveillance and regulation,” Hickman testified in support of his bill. “Once a family has an open investigation, regardless of whether the report is based solely on conditions of poverty, they are subjected to an unparalleled power to investigate, supervise, and destroy the family unit with little judicial oversight.”

Hickman’s bill, L.D. 891, in addition to including an exception for poverty, would have further narrowed Maine’s amorphous definition of child abuse and neglect. Unlike some other states, Maine law requires that mandated reporters flag instances not only where they know abuse or neglect is happening but where they suspect it will happen in the future. 

The legislation attempted to amend Maine’s definitions to ensure threats are “direct and identifiable” as well as clarify that depriving children of necessities must be “willful” to be considered neglect and that only “non-accidental” serious injuries should prompt agency investigation. 

It also pushed for DHHS to identify services that could help prevent removal, and would have required the agency to list “the efforts made, the duration of those efforts and the outcome of those efforts” in its requests to the court for removal. 

DHHS’s Office of Child and Family Services director Bobby Johnson opposed the bill, warning that “willful” and “direct and identifiable” were not defined in Maine law, and that the legislation went too far in preventing the department from taking action.

Johnson described a hypothetical situation where a child accidentally ingested fentanyl at home and died. “If there are other, surviving siblings to that child, OCFS would not be able to intervene and seek a jeopardy finding because no actual harm has occurred to those children and the deceased child’s death was not caused by a ‘willful’ act of the parent,” Johnson testified.

“This bill would significantly limit OCFS’s ability to act in situations that present a serious risk of injury or death to a child,” Johnson said.

The Maine Chiefs of Police Association also testified against the bill, even though it would not have changed criminal statutes. 

“Although we recognize that economic instability may lead to an increased risk of neglect or abuse, it does not justify abusive actions or willful neglect of a child,” Auburn Police Chief Jason Moen, who is president of the association, said in his submitted testimony. “These behaviors should not be considered excusable solely based on one’s financial situation.”

The union representing DHHS caseworkers did not take a position on any of the three bills, said Robin Upton-Sukeforth, a field representative for the Maine Service Employees Association. But she added that “our case workers feel that it is unfortunately too common that they are having to investigate solely because a family is in poverty.”

At a Friday work session, the health and human services committee voted unanimously to advance the DHHS-backed bill before voting against Hickman’s proposal. 

There was little discussion about Hickman’s legislation in the committee, save for Rep. Flavia DeBrito (D-Waterville) noting the bill’s language seemed “heavy” before moving to vote “ought not to pass.” 

Unlike Hickman’s bill, L.D. 1406 represented “incremental change that has consensus support,” said Melissa Hackett, policy associate with the Maine Children’s Alliance and coordinator for the Maine Child Welfare Action Network. Hackett testified in favor of 1406 but neither for nor against Hickman’s bill. 

After the committee vote, Hickman told The Monitor he was happy that L.D. 1406 passed, even if his bill didn’t.

“Anything that we can do with legislation, and what the department can do going forward, to ensure that they are not automatically assuming that people who live in poverty are terrible parents is a good thing,” Hickman said. 

The harm of removal 

The third bill, from Sen. Donna Bailey (D-York), who also co-sponsored Hickman’s bill, would require the department and the courts to weigh the harm of removal against the harm of the alleged maltreatment when deciding whether to remove a child or terminate a parent’s rights. Bailey’s bill was based on recommendations from the Maine Child Welfare Advisory Panel.

L.D. 1544 would require the courts to evaluate “whether the department has exhausted the options to mitigate the immediate risk of serious harm to the child and avoid the removal of the child from the child’s home.” 

On Wednesday, the judiciary committee voted 9-1 to recommend the bill pass after hearing testimony from Owens regarding the department’s failure to consider the trauma of removal in neglect cases.

“When we’re talking about neglect, the term is subjective, it’s not really well-defined,” Owens said. “The balancing, I think, is important for the department so that it’s making sure it’s doing everything to keep families together.”

She said she has seen a number of cases where children have been removed simply because their families were poor.

“I have had cases where the documentation is that the children seem hungry, the clothes are dirty, the clothes are ill-fitting,” Owens said. “That’s poverty. That’s not an intentionally neglectful situation. And I have absolutely had cases where those children were relocated.”

Under current law, DHHS must try to reunify the child with their family after removal, or risk forfeiting federal funding. However, the Maine Supreme Judicial Court has ruled that failure to reunify, or the inability to provide the necessary services and support to reunify, does not prevent the state from terminating a parent’s rights. 

Bailey’s bill would require the courts to determine whether the department made “reasonable efforts” to reunify the child with their parent before terminating the parent’s rights to their child.

“We have to focus on trying to lessen that trauma while keeping children safe in the home,” Bailey told The Monitor. “It’s about holding the department accountable for what they’re supposed to be doing anyway. There are supposed to be reasonable efforts under federal law, and they are supposed to be doing that, but there’s no accountability.”

Johnson from DHHS testified that her department already has to convince a judge that a child is at risk “of serious harm” before removal.

“The additional statutory requirement of specifically weighing trauma of removal risks the safety of children both in the time it would take to evaluate, quantify, and outline this information in the petition itself and in the possibility that the court could deny the [the department’s motion] if they find this information is not sufficient to overcome the statutory obligation,” Johnson testified. 

The child welfare ombudsman, the agency’s independent watchdog, also opposed the bill.

“There is no question that it is traumatic to remove children from their homes and familiar caregivers,” ombudsman Christine Alberi testified. “However, I am concerned that the language in proposed legislation L.D. 1544 will discourage child welfare staff and courts from acting quickly when the risk is high, which we have consistently found is a practice issue that the Department already struggles with.”

There has been a “better safe than sorry” attitude when it comes to reporting and investigating potential maltreatment in Maine, said Sarah Loud, a parents’ attorney and guardian ad litem. Loud recently moved to Maine after practicing in Texas, which recently reformed its child welfare laws and drastically reduced the number of kids taken into state custody. 

“When I began practicing here I immediately saw the effect of the high-profile coverage of child fatalities in the system over the past few years,” Loud testified to the judiciary committee. 

“Nobody wants to be the one responsible for a child’s injury or death. Yet the result of this is to inflict undeniable trauma on children who may be removed from the home at any hour, placed in the back of a car and taken to a stranger’s house and left there, not knowing what is going to happen to them next.”

In a work session on the bill, Ariel Piers-Gamble, head of the attorney general’s child protective division, questioned how her department was supposed to weigh the damage of removal against the threat of maltreatment. 

“How do we assign points to the trauma of removal and trauma of being sexually assaulted by your parent?” Piers-Gamble asked. “I mean, how do we assign value to these things?”

Some lawmakers pushed back against the idea that those different types of harm would have to be quantified.

“This does seem like a really hard balancing test,” said Rep. Adam Lee (D-Auburn). “But that’s what courts do.”

This story was originally published by The Maine Monitor, a nonprofit civic news organization. To get regular coverage from The Monitor, sign up for a free Monitor newsletter here.