The opinion
STATE OF MAINE SUPERIOR COURT
CUJvfBERLAND, ss CMLACTION
DOCKET AP-.171
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FAITH TINSMAN
Petitioner
v. DECISION AND ORDER
MAINE DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Respondent
Before the court is a Rule SOC petition filed by Faith Tinsman seeking
review of the Maine Department of Health and Human Services August 27, 2012,
administrative child support decision that relieved Adam Scott ("Scott") of the
legal duty to support his child. For the following reasons, the decision of the
DHHS is reversed.
I. FACTUALANDPROCEDURALBACKGROUND
Faith Tinsman and Adam Scott are the parents of Zachary Scott, born
October 18, 2009. (D-1.) Faith Tinsman (the "Petitioner") is the custodial parent
and receives public assistance (TANF and MaineCare) from the State. (Tr. 5
(Aug. 2, 2012).? In March 2011, the State of Maine Department of Health and
Human Resources ("DHHS"), pursuant to 19-A M.R.S. § 2304(8) (2012) and the
Maine Child Support Enforcement Manual, issued a decision requiring Scott, the
non-custodial parent, to pay child support of $128 per week. (R. D-1.) In
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Citations to the License Revocation Proceeding will be (R. L.R. _.)Citations to the
License Revocation Transcript will be (Tr. L.R. _(Aug. 2, 2012).) Citations to the Child
Support Hearing will be (R. C.S. _.) Citations to the Child Support Hearing Transcript
will be (Tr. C.S. _(Aug. 2, 2012).) Citations to the Record of the Motion to Modify
Support Proceeding will be (R. D-__._.)
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September 2011, Scott requested a hearing to modify the March 2011 child
support determination. (R. D-5.) In December, DHHS issued a decision that
reduced Scott's child support obligation to $102 per week, based on findings that
Scott lost his job and that his income was reduced from $26,000 to $19,032 per
year in unemployment benefits. (R. D-5, 1; Tr. C.S. 2-3 (Aug. 2, 2012).)
In July of 2012, DHHS served Scott with notice that it intended to revoke
his Maine State licenses for nonpayment of child support. (R. D-1.) On July 10,
2012, Scott requested a hearing on the notice of license revocation. (R. L.R., Ex.
H0-1, 4.) Subsequently, on July 22, 2012, Scott requested a hearing to reduce his
child support obligation. (R. L.R., Ex. H0-1, 4.)
Although the child support hearing and the license revocation hearing
dealt with different issues, and were held separately, they both were held on
August 2, 2012. Hearing Officer Tamara Longanecker presided over both
hearings. Scott appeared on his own behalf, Tinsman appeared on her own
behalf, and Agent Jodi Philipp on appeared on behalf of DHHS' s Division of
Support Enforcement and Recovery. (Tr. L.R. 1-2 (Aug. 2, 2012).)
The hearing officer stated at the beginning of the child support hearing
that the two hearings were separate and involved separate issues,
we just had a hearing regarding an enforcement action, now we are
going to go forward looking at the current order and look at if that
should be amended.[ ... ] I know I just swore all you folks in but
just let me swear you in since this is a new hearing ... [.]
(Tr. C.S. 1 (Aug. 2, 2012).) The hearing officer had made that same point
throughout the prior license revocation hearing. (See Br. of Resp. 4, n. 7)
(statement of hearing officer that the two hearings involved different issues and
were separate.) Additionally, the hearing officer made the point that documents
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presented at the license revocation hearing, including the prior child support
order, would not be made part of the child support hearing unless they were
presented again.
The only documents I have to put in the record at this time are
collectively Hearing Officer [Exhibit] number one, the Notice of
Hearing Dated July 11, 2012, the request for admin hearing dated
July 10, 2012 and the letter from Mr. Scott dated July 10, 2012. Ok so
let's get the current order then in the record. I know you just gave
it to me on the last case, ok ... let me just get it in the record here.
(Tr. C.S. 2.)
The record of the child support hearing included evidence of Scott's
earned income and unemployment benefits between May 2010 and August 2,
2012. (R. C.S. D-1, Tr. C.S. 6-9 (Aug. 2, 2012).) Additionally, Scott testified that he
last worked as a direct support professional at Granite Bay Care and that he had
been unemployed since April of 2012. (Tr. C.S. 6-9 (Aug. 2, 2012).)
As for Scott's current ability to earn income, Scott testified that he was a
23-year old high school graduate and that he had a steady work history doing
mostly manual labor. (Tr. C.S. 6-9 (Aug. 2, 2012).) He testified that he had
attention deficit hyperactivity disorder (ADHD), for which he was taking
medication and receiving counseling. (Tr. C.S. 7-9 (Aug. 2, 2012).)
Additionally, Scott testified that he was actively seeking work with assistance
from Vocational Rehab, and that he recently interviewed at Dunkin Donuts and
was awaiting a job offer. (Tr. C.S. 6-9 (Aug. 2, 2012).) Scott testified that the job
would pay at least minimum wage ($7.50 per hour), and perhaps as much as
$8.00 per hour. (Tr. C.S. 7 (Aug. 2, 2012).)
Tinsman testified at the August 2, 2012, child support hearing that, she
worked part-time earning $8.10 per hour, received $70 per month in TANF, and
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paid $49 per week for daycare. (Tr. C.S. 3-5 (Aug. 2, 2012); R. D-2.) In addition to
Tinsman's testimony Agent Philippon argued that Scott's child support
obligation should be determined in accordance with the guidelines by imputing
to him annual income equivalent to minimum wage based on the ability to work
full-time earning minimum wage. (Tr. C.S. 9 (Aug. 2, 2012).) Hearing Officer
Longanecker took the matter under advisement. (Tr. C.S. 10 (Aug. 2, 2012).)
On August 27, 2012, the hearing officer issued a child support decision
that reduced Scott's child support obligation to zero and also relieved him of a
duty to provide health insurance and to pay a portion of the child's uninsured
medical expenses. (R. A, 4.) The hearing officer based her findings on Scott's
testimony that he was unemployed, taking medication, attending counseling,
working with vocational rehab, and looking for a job. (R. A, 1.) Additionally, the
hearing officer concluded that Scott "is currently homeless, literally sleeping on
the street and eating at soup kitchens," and that he was experiencing "a housing
and employment crisis. (R. A, 2.) Based on those findings, the hearing officer
concluded that Scott was not voluntarily unemployed and that no income could
be imputed to him. (R. A, 2.)
Subsequent to the hearing officer's findings, Tinsman filed an
administrative appeal of the child support decision, challenging the findings that
Scott's unemployment was involuntary and that he lacked the capacity to earn
income or to receive unemployment benefits. (R. H0-1, 6-8.) On November 7,
2012, Hearing Officer Jeffrey Strickland held a hearing on the appeal. (Tr. A.P. 2
(Aug. 2, 2012).) On December 6, 2012, he issued a decision affirming the child
support decision of hearing officer Longanecker. Specifically, Strickland found
that, "the evidence in the record does not support that the prior Hearing Officer
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[Longanecker] erred in not imputing income to [Scott] on the basis of voluntary
unemployment." (R. 3.)
On January 3, 2013, Tinsman filed a timely petition for judicial review.
II. DISCUSSION
A. Identifying the Operative Decision
First, this Court must determine whether Hearing Officer Longanecker or
the subsequent affirmation of that decision, by Hearing Officer Strickland, is the
operative decision in this appeal. The appeal to this Court presents a unique
circumstance where the Petitioner has filed the appeal, but has joined the
respondent's brief filed by the Attorney General's Office. Here, both the
respondent and the petitioner contend that Hearing Officer Strickland acted in
an appellate capacity in reviewing Hearing Officer Loganecker' s decision to
impute no income to Scott and simply determined whether Hearing Officer
Longanecker arrived at the proper decision.
The Law Court has held that where there have been two levels of
administrative decision-making, the most recent decision will be the one subject
to Superior Court review, if the most recent decision-maker had de novo capacity
and/ or the authority to conduct additional fact-finding. See Concerned Citizens to
Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39, <J[ 17, 15 A.3d 1263. In this
instance, it is clear that Hearing Officer Strickland's authority was limited to,
[w]hether the decision was decided incorrectly based on the
evidence submitted at the hearing and the requirements of the
Manual. Evidence not part of the hearing record may be considered
at the appeal hearing if the evidence was offered but incorrectly
excluded at the hearing.
10-144 C.M.R Ch. 351 ch. 12, § 7 (2012). Therefore, because Hearing Officer
Strickland did not act as a fact-finder and was limited to a review of the evidence
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presented at the original August 2 hearing, this Court concludes that it is
Hearing Officer Longanecker's decision that will be reviewed on appeal.
B. Standard of Review
When the decision of an administrative agency is appealed pursuant to
M.R. Civ. P. SOC, this court reviews the agency's decision directly for abuse of
discretion, errors of law, or findings not supported by the evidence. Centamore v.
Dep't of Human Servs., 664 A.2d 369, 370 (Me. 1995). "An administrative decision
will be sustained if, on the basis of the entire record before it, the agency could
have fairly and reasonably found the facts as it did." Seider v. Bd. of Exam'rs of
Psychologists, 2000 ME 206, 'I[ 9, 762 A.2d 551 (citing CWCO, Inc. v. Superintendent
of Ins., 1997 ME 226, 'I[ 6, 703 A.2d 1258). The court will "not attempt to second-
guess the agency on matters falling within its realm of expertise" and judicial
review is limited to "determining whether the agency's conclusions are
unreasonable, unjust or unlawful in light of the record." Imagineering, Inc. v.
Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). "Inconsistent evidence will
not render an agency decision unsupported." Seider, 2000 ME 206, 'I[ 9, 762 A.2d
551. The burden of proof rests with the party seeking to overturn the agency's
decision, and that party must prove that no competent evidence supports the
Board's decision. See Bischoffv. Bd. ofTrs., 661 A.2d 167, 170 (Me. 1995).
B. Factual Findings
The Respondent contends that Hearing Officer Longanecker's decision to
impute no income to Scott was based upon factual findings not presented as
evidence in the child support hearing. In particular, the respondent points out
that Hearing Officer Longanecker found that Scott was "homeless," "sleeping on
the street," "eating at soup kitchens," and experiencing a "housing and
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employment crisis," even though no evidence in the child support hearing record
supported those findings.
Pursuant to 5 M.R.S.A. § 9059(4) (2012) of the Administrative Procedures
Act, "[a]ll material, including records, reports and documents in the possession
of the agency, of which it desires to avail itself as evidence in making a decision,
shall be offered and made a part of the record and no other factual information
or evidence shall be considered in rendering a decision." 5 M.R.S. § 9059(4)
(2012). Therefore, "[t]o the extent that an agency relies on information obtained
outside of the record and the proceedings it has acted improperly." Forbes v.
Twn. Of Southwest Harbor, 2001 ME 9, <[ 14, 763 A.2d 1183. Additionally, an
agency must not make factual findings based on evidence presented at a separate
proceeding involving the same parties, unless that evidence was made part of the
present record. P.U.C. v. Cole's Express, 138 A.2d 466,474 (Me. 1958).
After an independent review of the record, the Court concludes that
Hearing Officer Longanecker's findings that Scott was, "homeless," "sleeping on
the street," "eating at soup kitchens," and experiencing a "housing and
employment crisis," is not supported by record evidence presented solely during
the August 2, 2012, child support hearing. (See Tr. C.S. 1-11 (Aug. 2, 2012); but
cj. Tr. L.S. 6-8 (Aug. 2, 2012) (statements made by Scott and his father about
Scott's current housing and employment situation).) The record evidence shows
that the above-mentioned findings by Hearing Officer Longanecker's are based
on the testimony of Scott and his father at the separate license revocation hearing
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also held on August 2, 2012, and presided over by Hearing Officer Longanecker. 2
Because the hearing officer relied upon evidence not on the record of the child
support hearing, the decision to modify Scott's child support obligation must be
vacated, and the case be remanded back to DHHS for a decision consistent with
the record evidence presented at the Child Support Hearing alone. See 5 M.R.S. §
9059(4) (2012); Forbes, 2001 ME 9, <JI 14, 763 A.2d 1183.
Therefore, the entry is:
The decision to modify the child support obligation of Adam Scott is
VACATED and the case is remanded to the Department of Health and
Human Services to issue a child support decision based solely on evidence
in the child support hearing.
The Clerk is directed to incorporate this Order into the docket by reference
pursuant to M.R. Civ. P. 79(a).
Dated: August 15, 2013 o.UUL
A. Wheeler
·
Petitioner-Faith D T.1nsman (Pro Se)
Respondent-Carlos D1aZ AAG
PII-Adam Scott (Pro Se)
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Although not the operative decision being reviewed, it is worth noting that the
administrative appeal decision affirming the child support decision similarly relied
upon evidence not presented at the child support hearing.
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