The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-02-04
DUM = KEN 1a [Ie / 300m
DEAN V. McEWEN,
Petitioner
v. DECISION AND ORDER
MAINE DEPARTMENT OF DONALD L. GARBRECHT
HUMAN SERVICES, LAW LIBRAF
Respondent JAN 7 2003
On February 7, 2002, Dean McEwen, through his counsel, filed an “Appeal of
Final Agency Action” dated January 23, 2002. In the petition, it is alleged that the State
of Maine Department of Human Services “has ‘substantiated’ that plaintiff has neglected
and poses a threat of neglect to his daughter, Sheila McEwen.” Petitioner alleges that
his request for review was denied and that the denial constitutes a final agency action.
On January 25, 2002, the respondent agency was served with the petition. A briefing
schedule was issued by the court dated April 24, 2002, directing the petitioner to file his
brief 40 days after April 24, 2002, i.e., June 3, 2002. On July 2, 2002, respondent Maine
Department of Human Services filed its brief. Petitioner's brief, entitled “Plaintiff's
Brief” was dated May 31, 2002, but not filed with the court until November 8, 2002.
On April 4, 1996, a Judge of the Maine District Court issued a judgment in the
matter of Dean Vincent McEwen v. Robin Lynn Corson. The court found that the parties
were the natural parents of one Sheila McEwen born January 19, 1993. The parties were
awarded shared parental rights and responsibilities with primary residence of the child
awarded to Robin Lynn Corson. Mr. McEwen was afforded all reasonable rights of
parental contact with certain dates and times enumerated. This judgment was amended
under date of September 9, 1998. The parental rights and responsibilities continued to
be shared but additional requirements included the order for Dean McEwen to provide
notice to Ms. Corson in the event he is to be late returning the child from a visitation
and further, “The plaintiff will not consume nor use any substances such as alcohol or
drugs 12 hours before picking up the minor child for visitation and during the entire
time when visitation is occurring.”
On or about May 29, 2001, a complaint was received by the Maine Department of
Human Services alleging child abuse or neglect with regard to this child and alleging
such abuse on the part of her natural parents, including the petitioner. An investigation
took place and reports were rendered. The conclusion of the investigation indicated
substantiated neglect and abuse by the petitioner but a capacity in the natural mother to
protect the child and specific safety factors implemented by the mother in this regard.
As a result, no further action was taken by the Department in accordance with its
authority under 22 M.R.S.A. § 4004 et seq. However, the Department of Human
Services did notify the petitioner by its letter of October 15, 2001, that “The Department
has substantiated that you have neglected and posed a threat of neglect to Sheila
McEwen.” The letter also advised the petitioner of his right to request a review.
Subsequent to that letter, the Department advised the natural mother, Ms. Corson, that
the Department was closing the safety assessment on her family having substantiated
that the petitioner neglected and posed a threat of neglect based on inadequate
supervision and violation of the court judgment due to ongoing substance abuse prior
to or during visitation. The Department advised Ms. Corson that they had documented
that she had developed and implemented an appropriate plan to protect the plan.
Under letter of December 7, 2001, counsel for the petitioner, alleging that he did
not receive the Department's October 15, 2001 letter until November 30, 2001,
requested a review pursuant to the procedure stated in the notice. By letter dated
December 31, 2001, the Director of the Division of Child Welfare of the respondent
agency advised the petitioner through his counsel that it had conducted a review in
accordance with petitioner's request and that:
Based upon my review of the record, I am writing to advise you that I am
upholding the substantiation. As a result of my review I conclude that
there is sufficient information in the case record to support the finding of
abuse or neglect that was contained in the letter you received from the
caseworker. This decision is based on information from interviews with
Mr. Dean McEwen and other family members. This decision completes
the review process.
December 31, 2001, wasa Monday. Assuming that it was mailed in the ordinary
course and taking into consideration that January 1, 2002, was a holiday, the court
assumes that counsel for the petitioner received the notification on or before Friday,
January 4. Petitioner’s petition is dated January 23, 2002, but was not filed with the
court until February 7, 2002. The petitioner has not provided the court any response to
the respondent's allegation that this petition is untimely as being beyond the 30-day
limitation for review of a final agency action. 5 M.R.S.A. § 11002(3).
It is petitioner’s position that the State's substantiation of abuse is unsupported
by substantial evidence on the whole record. Petitioner admits that he has the burden
of proof and that he must prove that no competent evidence supports the agency
decision. He goes on to conclude:
Based upon all of the above, there is simply no factual basis on which
complaint could properly have been substantiated as a risk to his child. It
is unconscionable that this blot on his reputation and impediment to his
appropriate visitation has been imposed on him by the Department. We
respectfully requests that the determination of the Department of Human
Services in this instance be reversed.
Neither the petitioner nor the respondent have presented the court with support
that the conclusions from the investigation by the Department of Human Services
constitute “final agency action.”! “Under the Maine APA, the Superior Court is granted
jurisdiction to hear petitions for review filed by ‘any person who is aggrieved by final
agency action...’ 5 MRSA. § 11001(1)... The AAP defines ‘final agency action’ as ‘a
decision by an agency which affects the legal rights, duties or privileges of specific
persons, which is dispositive of all issues, legal and factual, and for which no further
recourse, appeal or review is provided within the agency.’ 5 M.R.S.A. § 8002(4) .. .
Despite the distinctly adjudicative flavor of the above definition ‘final agency action’ it is
not necessarily limited to adjudicative decisions ... The definition (of ‘final agency
action’) is intended to make all agency decisions affecting one's legal rights, duties and
privileges judicially reviewable, not just those made in licensing or adjudicatory
proceedings.” Brown v. State Department of Manpower Affairs, 426 A.2d 880 (Me. 1981).
Furthermore "the broad language of 5 M.R.S.A. § 8002(4) (defining final agency
action) and 5 M.R.S.A. § 11001(1) (conferring jurisdiction on the Superior Court to
review final agency action) must be read in light of the constitutional doctrine of
separation of powers. See Me. Const. Art. III. The Legislature may not constitutionally
confer in the judiciary a commission to roam at large reviewing any and all final actions
of the Executive Branch. Brown, 426 A.2d at 884... Asa matter of sound judicial policy,
1 Counsel for respondent apparently merely presumes that this court has jurisdiction under M.R.
Civ. P. 80C and the Administratives Procedures Act. Other than the bald statement that the
“substantiation” by the Department of Human Services constitutes final agency action, there is no
support for the position. Upon inquiry by the court as to whether or not this constitutes “action” by the
Department, neither party could answer the question.
4
we will not undertake review of administrative decisions which are properly classified
as ministerial, or which are not centrally related to the function for which the agency
was created.” Northeast Occupational Exchange, Inc. v. Bureau of Rehabilitation, 473 A.2d
406 (Me. 1984) citing Brown v. Department of Manpower Affairs, 426 A.2d 880.
The Department of Human Services made a factual finding that there was
neglect or threat of neglect by the petitioner's activities. Because the Department was
satisfied that the natural mother was sufficiently in control and had full authority under
the amended District Court Judgment to protect the child, it took no action. No
amendment to the District Court Judgment has resulted from this Department
substantiation. No additional limitations have been placed upon petitioner’s
relationship with his daughter. No Title 22 M.R.S.A. actions have been taken by the
Department of Human Services. No “legal rights, duties or privileges” of the petitioner
have been affected in any way nor has he been denied any forum for protection of his
due process rights to dispose of legal or factual issues resulting from this
“substantiation.”. Accordingly, there has been no final agency action (emphasis
supplied). Therefore, this court has no jurisdiction to hear this matter and the petition is
dismissed.
For the reason stated above, the entry will be:
Petitioner’s “Appeal of Final Action Agency” is DISMISSED.
Dated: December (é , 2002
Donald H. Marden
Justice, Superior Court
Date Filed ___ 2/7/02 __Kennebec—S—“—sés«<DovcKCeet' NN. AP02-04
County
Action___ Petition for Review
oe J. MARDEN
Dean Vincent McEwen VS. Department of Human Services
Plaintiff’s Attorney Defendant’s Attorney
Schuyler G. Steele, Esq. Matthew Pollack, AAG
P.O. Box Drawer F Depart. of Attorney General
Newport, Maine 04953- 6 State House Station
Augusta ME 04333-0006
Date of
Entry
2/7/02 Appeal of Final Agency Action, filed. s/Schuyler, Esq.
Original Summons with return service made upon Department of Human
Services on 1/25/02.
2/11/02 Entry of Appearance of Matthew Pollack, AAG on behalf of State
of Maine, Department of Human Services, filed. s/M. Pollack, AAG.
3/11/02 Maine Department of Suman Services’ Motion to Allow Redacted Record:
and to Impound Record, with Incorporated Memorandum of Law, filed.
s/Pollack, AAG
Proposed Order Allowing Filing of Redacted Record and Impounding Record,
filed.
4/24/02 ORDER ALLOWING FILING OF REDACTED RECORD AND IMPOUNDING RECORD, Marden, J.
(dated 4/11/02)
Copies mailed to attys of record.
Notice of briefing schedule mailed to attys of record.
6/3/02 Plaintiff's Brief, filed. s/S. Steele, Esq.
7/2/02 Brief of Applellee Maine Department of Human Services, filed. s/Pollack, AAG
11/14/02 Copy of Plaintiff's Brief, filed. (filed 11/8/02). (Original Brief was
filed on 6/3/02)
11/27/02 Hearing had on Appeal, Hon. Donald Marden, Presiding.
Schuyler Steele and Matthew Pollack present oral arguments. Defendant
made motion to dismiss. Court takes matter under advisment.
12/16/02] DECISION AND ORDER, MARDEN, J. (12/16/02)
Petitioner's Appeal of Final Agency Action is DISMISSED.
Copies mailed to attys of record.
Copies mailed to Deborah Firestone, Garbrecht Library and Goss.