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Doe v. Department of Health and Human Services

Supreme Court of Maine

December 18, 2018

JOHN DOE
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES

          Argued: October 24, 2018

          Joshua Klein-Golden, Esq. (orally), Clifford & Golden, PA, Lisbon Falls, for appellant John Doe

          Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          GORMAN, J.

         [¶1] In April of 2017, the Department of Health and Human Services denied John Doe's request for a review of the Department's 2003 substantiation of him for sexual abuse of a minor. Doe now appeals from a judgment entered by the Superior Court (Androscoggin County, MG Kennedy, J.) that affirmed the Department's decision to deny Doe's request. Doe challenges the Department's denial as, inter alia, a violation of his procedural due process rights. Given the unique timing of the substantiation at issue here, we vacate the judgment of the Superior Court and remand for further proceedings.

          I. BACKGROUND

         [¶2] The parties do not dispute the following facts.

         [¶3] On October 1, 2003, the Department mailed a letter to Doe informing him that he had been substantiated for sexual abuse of a minor.[1]The letter explained the basis for the Department's substantiation finding and stated that Doe had the right "to request a review of the assessment record ... in writing within thirty [] calendar days." Doe acknowledges that he did not write the Department within thirty days after October 1, 2003, to request a review of his substantiation.

         [¶4] When the Department substantiated Doe in October of 2003, a "paper review"-established by a 2000 Department policy (the 2000 policy)-was the only appeal process available to an individual wishing to challenge a substantiation finding; there was no opportunity for any sort of hearing. See Me. Dep't Health & Human Servs., Review of Substantiation Decisions of Child Abuse and Neglect, Child & Fam. Servs. Manual (2000) [hereinafter 2000 Policy]. The 2000 policy purportedly applied to "all official findings of child abuse or neglect [that were] substantiated on or after February 1, 2000," and it set forth the process by which the Department attempted to comply with the Federal Child Abuse Prevention and Treatment Act (CAPTA).[2] Id. As the Department conceded at oral argument, it did not adopt the 2000 policy pursuant to the Maine Administrative Procedure Act (APA). 5 M.R.S. §§ 8001-11008 (2017); 22 M.R.S. § 42(1) (2017).

         [¶5] In November of 2003-a month after Doe received his substantiation letter-the Department adopted formal rules for substantiation appeals (the 2003 rules) pursuant to the APA's emergency rulemaking provision.[3] See 5 M.R.S. § 8054 (2017); 22 M.R.S. § 42(1); 18 C.M.R. 10 148 201 § XI (effective Nov. 1, 2003). The 2003 rules created the opportunity for a person whose substantiation was upheld after a paper review to request an administrative hearing in order to challenge the Department's substantiation finding.[4] 18 C.M.R. 10 148 201 §§ IV(E), V(B) (effective Nov. 1, 2003). Despite the promulgation of the formal rules in November of 2003, the Department's 2000 policy was still in effect when Doe received his substantiation letter and thus it is that policy-and not the 2003 rules-that apply here. See 18 C.M.R. 10 148 201 § XI (effective Nov. 1, 2003).

         [¶6] One day after the Department mailed Doe his substantiation letter, a Sagadahoc County grand jury handed down an indictment charging him with eight counts of gross sexual assault (Class A), [5] and eight counts of unlawful sexual contact (Class C).[6] In January of 2004, a jury convicted Doe on all sixteen counts; we upheld the conviction but, after Doe's successful post-conviction review and a subsequent retrial in 2009, a second jury acquitted Doe of all counts.

         [¶7] In 2008, while Doe's criminal case was unfolding, the Department promulgated yet another version of the substantiation-appeal rules.[7] See 18 C.M.R. 10 148 201 §§ I-XIV (effective Oct. 1, 2008). The 2008 rules created procedures by which an individual could retroactively request an administrative hearing to review his substantiation, but only if (1) he had been substantiated before November of 2003 and (2) he had timely requested a paper review. See 18 C.M.R. 10 148 201 § XIV (effective Oct. 1, 2008). There is no indication in the record that the Department notified any of the individuals substantiated before November of 2003 of the opportunity for a hearing.

         [¶8] In January of 2017, the Department notified Doe that, based on his 2003 substantiation, his presence in a home where children were residing could lead to the removal of those children. On February 23, 2017, Doe requested a hearing to review his 2003 ...


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