On January 15, 2009, the state’s ombudsman, Dean Crocker, agreed to conduct an investigation into whether Maine’s Department of Health and Human Services (DHHS) had followed its policies and procedures in conducting the required kinship evaluation in a case where a child, David Handler, was placed in a potential adoptive foster-care family—while his grandmother waited to adopt him.The agency apparently failed to make any real effort to place David with caring family members instead of a stranger in a foster home.
Crocker and the courts have refused to release the report to David’s father, Russell Handler, even though it was the Handlers who had requested the investigation, and the ombudsman agreed to perform it. We can only speculate that the report confirmed that DHHS broke laws and/or procedures it’s legally obligated to follow.
There are state and federal mandates that clearly say that if “reunification is not possible with the child’s parents, then kinship placement should be sought by DHHS.”
On July 7, 2011, attorneys Eric Mehnert, Esq., and Joseph M. Baldacci, Esq., representing the Handlers, attempted to get a judge to review his decision not to allow the Handlers access to the ombudsman’s investigation. The judge had previously denied the Handler’s request to see the report for two reasons. The first was “case-specific” grounds. The second was that the Handlers are no longer David’s legal parents.
It is possible to blacken out areas of an ombudsman’s report deemed damaging to the welfare of a child, areas “case-specific,” so that DHHS polices and procedures can be viewed openly.
“It makes sense that we do not disclose to the general public the details of how a child may have been sexually abused or neglected … Beyond those details, however, there is no compelling State interest in limiting the disclosure of a report from the ombudsman, whose very purpose is to serve as a check on government action,” said Eric Mehnert, Esq., co-attorney for the Handlers. “In the Handler case any ‘case-specific’ details of abuse or neglect are non-essential to the kinship issue that the ombudsman investigated. Here, there is no legitimate reason as to why the state is not being transparent.”
It all began in 2005, when DHHS became involved in the Handler’s lives. By mid-October 2007, the Handler’s parental rights were terminated by the State. During those intermediate years, several family members tried to adopt David. They were appalled at the thought that he might end up in foster care. But to their surprise and horror, DHHS refused to seriously review their applications.
Mrs. Marjorie Kern wanted to adopt her grandson. Marjorie has a masters in education and had taught children David’s age at the United Nations International School in New York City. She filed the necessary paperwork in 2005 and visited Maine twice, met with DHHS, and then waited to hear when she could become David’s legal guardian. But instead of placing David with his grandmother, DHHS placed David with a potential adoptive foster family immediately after the Handler’s parental rights were terminated in 2007. They never bothered to notify Marjorie of the decision.
David’s first cousins also tried to become guardians, but they were summarily ignored—and the state’s attorney general said their request was “frivolous.”
It is apparent that DHHS caseworkers never conducted a search for any possible kinship placements. The ombudsman report most likely confirms this reality. The ombudsman’s document might also contain evidence that could reopen for review the child protective process DHHS used in the Handler case.
The Handlers filed two Freedom of Information requests to bring the ombudsman report into the light of day, but they were denied. Then they filed a Freedom of Access Act complaint that went to the core values of secrecy in a democratic society—also denied. If “we the people” do not have a means to check whether procedures that involve the legal rights of citizens — in this case rights of kinship — are adhered to, then corruption can be present and citizens will suffer.
“The Court’s analysis must start with the premise that an informed citizenry is fundamental to the function of a democratic society, and free access to information is essential to an informed citizenry to enable them to serve as a check against corruption and to hold those who govern accountable to the governed,” said Mehnert.
Maine’s Constitution declares in Art. 1, Sec. 2, “All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government and to alter, reform or totally change the same when their safety and happiness require it.”
The way Maine’s court system functions right now denies citizens their rights to view reports that could alter their lives, livelihoods, and families because of the “case-specific” clause. Being “case-specific” can always give the state an excuse for not disclosing what the ombudsman uncovers in a child protective proceeding report.
Families deserve to be treated equally under the law. California, Colorado, Florida, Indiana, Iowa, Michigan, New York, North Carolina, Ohio, Oregon, Texas, and Washington all allow some public access to certain areas of the child protective process. Maybe Maine’s time has come.
For the Handlers the legal process continues, in a never-ending stream of motions that take up valuable time. The longer it takes the court to decide, the older the children involved in these cases become. The day the Handlers’ lawyers were in court, July 7, David turned twelve. David still must question why he wasn’t allowed to live with his grandmother or his cousins. He knew his grandmother had his room waiting for him.