March/April 2003
Caroline Gardiner, Esq.                                           
Interviewed January 31, 2003 in Portland, Maine.
Q:  I would like to start out by asking you about your background.

A:  I have a bachelor's degree in biology, a master's degree in biology, and most of a PhD in pharmacology, which I quit in the middle. I spent quite a number of years in biomedical research and for some family reasons moved back to Maine. I was doing this in Maryland and there was no biomedical research to pick up in Maine. So, that's when I decided I would have to go back to school.

I thought about going to nursing school. I thought about going to law school. I talked to the nursing school and they wanted me to go for four years. I had been teaching nurses, so I was a bit annoyed with them. Law school was only three years. So that's when I ended up going to law school. I graduated in 1989 at the University of Maine Law School and have been practicing ever since.

Q:  Were there other reasons why you went to law school other than it took only three years?

A:  There was something interesting that had happened to me. I had taken a couple of pre-law classes during the course of my academic meanderings. I had liked taking a couple of civil liberties classes. I thought they were really interesting.

When I went to law school I thought I would work in an area that was more scientific. I had an idea I would do environmental law or toxic tort law, something that was more aligned with what I had been doing previously. In fact, I ended up doing something completely different.

Q:  Have you always been a solo practitioner?

A:  I did an internship in the DA's office my last year in law school. And then I worked for two years at Norman Hanson and DeTroy doing workers comp. It wasn't a match. So then I went into the solo practice and I've really enjoyed it.

Q:  How did your practice evolve into mainly criminal and family law?

A:  I was comfortable doing the criminal defense because I had done the internship in the DA's office and had spent a year in the Portland district court. While I was at Norman Hanson I had done a few family matters and they seemed to be interesting to me.

When I started law school I had no interest whatsoever in doing family law. I took a family law course because I felt I had to. I didn't want anything to do with it. My experience with family law was my own divorce, which wasn't particularly fun. Then when I started up my practice it became apparent I didn't really want to do workers comp. I just picked up doing the criminal and family law.

And after a while I did the guardian ad litem training and served as a guardian ad litem. Also, while I was in law school I had worked as a CASA volunteer. That gave me some experience and insight into the child protective arena. When I set up my practice, I put my name down on the list for court appointed cases.

Q:  Is there any one area of law you prefer over the others or are they pretty much equal?

A:  Between the child protective and the criminal, I go back and forth. There are days when the child protective cases really get me down. It's hard work. Unhappy cases that go on forever. The criminal cases are short. They're defined. There's not a lot of gray area, not a lot of value judgments involved ... "He was caught in someone else's living room with their silverware in his pocket and no excuse." ...  It's pretty much cut and dried. And then the case is over. Whether there is a plea admission or a trial, its done. Its finite and you can move on to the next thing. So that certainly has its appeal in a world where nothing ever gets finished. But on the other hand, with the child protective cases, I really feel like I do something that's useful and valuable. I help families in a way that is constructive.

The family law, which is a little bit more bread and butter, is actually a little less interesting. I tend to define it as people who are in turmoil but who are going to be o.k. on their own. They don't really need my help. They would eventually get their family issues resolved.  They'll get through it and they'll get back to the fine upstanding people they were. If I can help them with that . . great. But, they'll be able to do it on their own.  There's only a limited amount of energy left being angry at somebody. Usually they wear out after a while.

Q:  Do you enjoy the trial work?

A:  Very much. It definitely has been the most fun and I tell my clients that. Going to trial is great fun for me because that's what I do and I respect it's not a whole lot of fun for the client.

Q:  Why do you find it fun?

A:  Good question. There's a sense of mastery. I know the case. I know the case law. The judge and the jury are looking to me to explain the case and the facts. I like that sense. I enjoy the "on the fly" almost improvisational nature of the trial. I'm less strong, I must admit, on the family law practice . . the financial affidavits and exploring the numbers, stuff like that. It's not quite as interesting to me.

Q:  If you think you have received an unfair result at trial, how does it sit with you?

A:  There are two parts to it. There is my part. I lost. I didn't do it right in some kind of way. And then there's my client's part. I try to separate out my part from my client's part because I think trial lawyers tend to be a pretty competitive bunch. I don't want to be sneering at what I perceive as a bad result because I lost. It may actually be a good result. Not what we were asking for, but there may be some positive in it. Being a grown-up, I say, "Well, let's look for the positive." And when I'm not, I say, "Oh, I hate to lose."

With a bad result I try to sit down with my client and explore the options. In many cases bad results are not tolerable and we need to explore appeal or modification. And there are other times when the bad results are balanced with the emotional and financial expenses, and continuing the litigation is actually acceptable. I don't really have that many bad results.

Q:  My guess is that you are able to rein in the expectation of the client before you even get going.

A:  That's a very important part of what I do and what I think lawyers ought to do, to get the client to understand the realm of possibility. People come in saying, "I want to sue him for a million dollars because I cut myself on his bread knife." I think people can come with somewhat unrealistic expectations. Part of my job is making sure that expectations are, in fact, realistic. Not to say that we can't ask for more than they might get, but keep the lid on for them.

Q:  You have taken some appeals to Maine's supreme court and have gotten good results.

A:  And some have gotten very short responses, "Go away." I've tried to focus on cases that really have importance. In terms of taking the appeal, I think we need to enlarge what the consequences of those bad results on appeal would be when we have a somewhat conservative court, in my estimation.  An example is if there is an issue about a stop. In the State of Maine it has been much easier for the police to justify a stop over the course of time. If you have a close case on the stop, you want to be careful about whether or not you convert that into case law further narrowing the defender's rights.  That is always a part of the analysis: whether or not this is a good case to lose. Sometimes there's nothing to lose. In some cases there is something to lose.

I like writing briefs. I think it's fun.

Q:  Do you like the research?

A:  I actually do. I think I'm an inefficient researcher. I don't think I do it particularly thoroughly. But, I think I have done well enough to pass muster.

It's a change of pace in terms of running around to court, always doing everything on the fly and then you're sitting up in the library reading books for hours on end going through the case law.  I find it a nice change of pace. I have done two or three appeals a year.

Q:  Do you want to talk about the ones of which you are most proud?

A:  There were two cases that were back to back. One was the Wilder case (State of Maine v. Wilder), which was such an interesting case for me from the beginning. My client was the noncustodial parent. His son visited him, then went home and alleged that he had squeezed his face and had squeezed his shoulder. My client was charged with three counts of assault. My client vehemently denied that he had ever done that. And we presented at trial what I thought was fairly good evidence that it hadn't happened, that the boy had possibly been pressured by his mother into making allegations against his father.

I also had thought that the judge had made a couple of errors in rulings. We had a couple of evidentiary issues and we had the basic premise that he hadn't done it and the evidence wasn't sufficient that he had done it.

We went to the law court. One argument before the court was basically: So what?  He must have done it, but so what? And that was the jist of the opinion, which was quite lengthy.  Basically, it's o.k. to discipline your children physically. That was not at all my client's position. We had thrown that in as an afterthought: He didn't do it, but, if he did, it was o.k. because there is a parental discipline exception.

I had argued on the technical evidentiary issues, which I thought were genuine and worthy of reversal. The law court completely ignored those. We ended up with a good result but it came out a different way than I had expected. I think it did help to clarify what parents can and can not do. We did have a period of time when there was confusion about how much freedom parents have to discipline their children. I think this case helped to clarify that.

The case I had at the same time was a child protective case. My client was the grandfather who wanted custody of his granddaughter. It was a horrible case. It was a heartbreaking case because my client was a good man. He had raised a fine daughter who had fallen off the path a little bit, but just enough to have the child removed.

The child was sick. It wasn't the mother's fault. She was a sick baby, hard to manage. The mother was a teenager, very young. Still in my mind there's no justification in denying this grandfather custody of this baby.

And we appealed that. It stimulated a dialogue. The opinion was against us. But there was a dissent that was really very harsh toward the Department of Human Services on what they had done during the course of this case. So it was no victory. But there was validation of some of the arguments we had made. This preceded the Logan Marr case and the heavy scrutiny into the Department. It was a forerunner of that.

[Editor's note: Logan Marr, a five-year old girl, died in foster care in January 2001.  Her foster mother, a former Department of Human Services caseworker, was convicted of manslaughter.]

Q:  Why did they deny the grandfather? Had the child bonded with the foster family?

A:  That was part of it. The grandfather was stationed abroad. He made arrangements to have a home study done. The Department refused to allow his source to do the home study. A year later they contracted with the same source to do the home study. That was very hard basically. If the Department had shown a greater commitment to the possibility of kinship placement, the bonding issue might not have arisen. The child stayed in the foster home and, I think, was ultimately adopted. I think she is doing o.k. I'm not sure a good adoptive home is better than a good biological home. I'm pretty sure it's not. It's not the same.

Q:  How did the guardian ad litem weigh in on that one?

A: There were two guardians. The first guardian was in favor of the grandfather. She withdrew because she had a change in her practice. And the second guardian, in my opinion, couldn't be bothered taking the time of day for the grandfather. Another aspect of the case that was disappointing.

Q: Are you still co-chairperson of the child protection committee?

A: Yes.

Q:  We can talk about Logan Marr and your appearance on Maine Watch last night.

A:  A comment one of the legislators made on the program last night was that there is really no way to legislate in such a way that would protect a child from depraved conduct.

Q:  You could go into that home once every three months or once a month and everything would look fine.

A:  Assuming for the sake of argument that the State position is the correct one, that she duct taped the child into the highchair . . her original defense was that the child did it . . it's just hard for me to imagine that anyone would think that was o.k. to do. I've certainly made mistakes as a parent. But I can't get there. I can't figure out what possibly could have been going through her mind that that was in some way beneficial to the child.

One of my daughters would wake up in night terrors and just scream and scream and scream. It was frightening and annoying and distressing . . everything that you could think of. . but it never occurred to me to leave her. I could never have duct taped her or restrained her in any way except to make sure that she was safe, to hold her.

In the course of doing what I do, some things baffle me . . what other people think is o.k.

Q:  What were some of the issues addressed on Maine Watch?

A:  Since Logan Marr's case and the scrutiny the Department of Human Services has been under, has that made any changes in the way business is conducted? The question was posed to several different entities.

The commissioner of the Department said, "Oh yes. We are making great strides." The grandparents that were interviewed and the attorneys that were interviewed, me and Maureen Dea, and the legislators all said: No, really there hasn't been change in the way the Department does what it does. It's worth taking a look at those interviews because that's my perception. It may be that somebody with a different philosophical outlook could see the answers in slightly different language.

One of the themes that seemed to be fairly consistent was that children are removed from households where they probably could be sustained. And that's harmful to a lot of players. The legislator who brought that up really focused on the harm to the child. But I also see it as very harmful to the whole family structure when the child is removed.

The child's faith in the parent's ability to keep him/her safe is damaged irrevocably. The parent's faith in his or her own ability to keep the child safe is damaged forever. And the extended family, depending on the point of view at the outset, shun the miscreant parent or continue the "life isn't fair to us" scenario. I was hoping that point would have come out more forcefully.

Q:  What changes can we make to keep the family intact and keep the child safe?

A:  I think there needs to be much more intensive reunification work ... I used to call it rehabilitation work . .right at the outset of the case. That means, instead of sending a parent to a parental capacity evaluation that takes weeks and months, to have intensive in-home services, somebody in the house after school when the kids come home for a couple of hours during the high-pressure time of day, whenever that might be.

It's sort of a cracking eggs to make omelets kind of thing. But, in the long run, I think that would be cheaper, less expensive on the citizens of the State and the State. If you had intensive in-home services you would fairly quickly be able to identify those families that are going to be able to get their act together ... whatever it is ... and those families that are beyond hope.

And I don't dispute for a second that there are some people who should not be raising children. It seems to me that we could do a better job of picking out and identifying who those people are and focus on fixing the families that can be fixed.

Q:  I'm thinking of instances where a parent has a serious substance abuse problem. Maybe that parent needs to focus on getting herself better. It would be good for a time-out.

A:  I'm all in favor for time-outs. I don't have a problem with time-outs. But I think that time-outs that last eighteen years are a little excessive. I certainly have seen many cases where the kids are removed. They probably could go home and could probably spend more time with their family than they are allowed to do. And then when they are sixteen, they leave their placement and place themselves with their family. That drive is so strong.

I think we could do that better. I know there is a way you can turn your children over to the Department voluntarily and then go pick them up. As a practical matter, when you turn your children over to the Department for a time-out and go back a month later to pick them up, you're hosed and the children never are going to come home.

Q:  The Department could do a better job. Do you think there should be changes in the statutes or in educating the judiciary?

A:  I think the statute is pretty good. If I were writing it from scratch I might have written it differently. The judiciary is pretty good. Certainly we have stronger members of the judiciary and some lightweights. I think what we really need is emphasis on the social services so the services would be available.

Substance abuse is a very significant problem. Domestic violence is a significant problem. Substance abuse and/or domestic violence usually covers my caseload.

Q:  What about mental illness?

A:  Mental illness sort of comes in there, but I have few cases where the parents are just "crazy". I have had a couple cases where the real issue was mental illness. I have had many many cases where mental health issues are a factor, but the fact is underscored by the substance abuse and the instability of a low socioeconomic lifestyle and domestic violence.

I can sort of understand how somebody might be clinically depressed if they were poor and people were telling them they were terrible parents. And every time they try to better themselves, for one reason or another, it has failed. It's hard for me to be sure where the mental health issues come in . . whether they're a cause or a reaction to a result of the difficulties the families are in.

I certainly have had cases where clients had a diagnosed mental illness and the Department's position was that, because he was mentally ill, he cannot be a parent without really exploring the parent's capacity to manage the mental illness. I think there is some bias against mental illness that is not reflected in physical illnesses. People have chronic physical illnesses and their parenting isn't disparaged nearly as much.

Q:  Sometimes there are cases where a child goes into foster care and the parent can't get it together to get the child back. The foster care arrangement is such that it is going to be long-term. Yet there will be a termination and the child is made a legal orphan.

A:  I certainly have had a number of those cases. And when I have been in the position to argue against it, I certainly have. In one case I had, the child was removed from the parents at the age of four or five. Everybody, except possibly the parents, really sees that this child is never going home. She has significant mental health issues of her own. The parents have substance abuse issues. A lot of problems. And it's not going to get fixed.

Yet this child is going to grow up her whole childhood in the foster care system because she's not really adoptable. The only constant in her life . . the foster parents are going to change, the social workers are going to change, guardians are going to change . . the only constant in her life really is her parents. Even though they can't care for her, they can be out there for her as a resource.

That case went to a termination. The termination was granted. The child now is nine or ten years old, pretty much unadoptable, and just adrift, I think. Other cases are less clear-cut, but that strikes me as so emblematic why we shouldn't be rushing to termination.

I know that the pressure is on the court to finalize things and that termination is a final step. That is definitely where I have some argument with this statute.

Q:  Any other issues discussed during Maine Watch?

A:  These cases involve judgment calls that introduce a level of uncertainty and second-guessing. The pendulum swings back and forth. Every couple of years something terrible happens to a child. Either the child is left in the home when the child should have been removed or a child is harmed in some kind of way in foster care. If the child is harmed in the home, then we focus on the need to be more zealous about getting the child out of the home. If the child is harmed in foster care, then we focus on the need to be more zealous about keeping children in the home and getting them out of foster care.

Q:  Do you want to talk about what you are going through with the ALS (Amyotrophic Lateral Sclerosis)?

A:  I'll try. It has been very challenging. It doesn't hurt. It doesn't make me feel bad. I certainly know people my age who have horrible diseases that are painful and have made them feel awful. It doesn't hurt. Just nothing works. Things work less and less well, It becomes more and more frustrating. Simple things like feeding myself and turning pages, stuff like that. Speaking.

I knew about three years ago now that there was something wrong and because of my biomedical background I knew ALS had to be on the short list. It's not been a whole lot of fun. My mantra is: "Basically it sucks." It's been disappointing to be closing up my practice. I feel that I have made a difference. Everybody has been very nice, very supportive.

Q:  How much longer do you plan on practicing?

A:  My child protective cases keep going on forever. I've been trying to find guardians ad litem for my kids because it is difficult for me to go see the kids. For some of the kids it has been a little bit difficult for them to see me.

I'm letting cases wean out by attrition. I wrote my clients a letter about six months ago that I had ALS and if they wanted a new attorney, I would help them find one. Very few responded and the ones that responded said, "Oh no. We want you to stay."

As you see, I have a fair number of cases. I think I'm down to fifty or sixty cases now. I had been running a caseload of a one hundred twenty to one hundred fifty cases.

Q:  How could you have done so many?

A:  I've always felt there is reason . . I set my standards fairly low. I went to law school as a single parent. People asked, "How can you do it?" My answer, "Oh, I'm satisfied with C's." I didn't have to change the world. Just work on the cases I had. I think I've done a fairly good job. Certainly, other attorneys would attend to the same cases differently. I don't have any quarrel with that. And there's certainly days when I would like to spend more time thinking about them.

Q:  Do you have time for family? You make time?

A:  Yeah. You may want to ask my girls that. I have always thought that we have done o.k.  They've done well. Allison and Erica Sanchez.

Q:  What advice would you give someone contemplating getting into the legal profession?

A:  I think the people that have been successful doing what I do are people who enjoy people, people who like listening to Aunt Millie's stories about Uncle Arthur. If you have a tolerance for that . . that's great. If you don't, you might want to look into another area of law because this area of law that I practice is about people telling their stories. If you can't stand to listen to that, look out. If you like it, it's a wonderful area to practice. I have found my clients so interesting to talk to and listen to. What I have brought to the practice of law is enjoying people and finding it interesting and fun.

The other thing that has been helpful to me is to admit your mistakes. You're going to lose and make mistakes and forget things or lose things . . many many opportunities to make mistakes. And, if you are the kind of person that will beat yourself up about that, it's going to be hard. Life isn't perfect for anybody. All of us make mistakes.

But then, I think you have great opportunities and can have a lot of fun practicing law.


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