Bangor Daily News

By A. Jay Higgins, Of the NEWS Staff
Last updated: Monday, November 3, 2003

Lawmaker fights DHS, state court in custody case

SPRINGVALE - As representatives of the people, state legislators are in a unique position to evaluate and correct policies and procedures within state agencies that may be flawed or unfair. But what happens when forces within the bureaucracy and the judiciary converge and shield potentially suspect activities within state departments from the scrutiny of lawmakers whose privileges are protected by statute?

If you happened to be in the same position as state Rep. Eddie Dugay was Thursday, you'd find yourself locked out of a York County courtroom while a district court judge, an assistant attorney general and a child welfare advocate discussed your motives and intentions.

"I was barred from entering the courtroom and I was pretty distressed about it, because I felt the original complaint involved me," the Cherry field Democrat said Sunday. "As a legislative official, I should have been allowed into the courtroom not to only observe the case, but also to state the facts and defend myself from the mischaracterizations that I believe were being make about my activities."

Dugay now plans to test the boundaries of the judicial system and policies within the state Department of Human Services. His challenge to current practices could ultimately affect the separation of powers governing the relationships of the Legislature, the Judiciary and Executive branches of government.

From Dugay's perspective, the entire chain of events that placed him on a collision course with the Attorney General's Office and a guardian ad litem from Pine Tree Legal Assistance began innocuously enough.

Dugay was contacted by the sister of a former Addison native, now residing in Lebanon, whose grandchildren had been taken from his daughter by the DHS welfare division.

The children's grandfather told the legislator the children had been placed in foster care after the state claimed his daughter was an unfit mother.

The woman and her entire family rebut the allegation and have been fighting an ongoing court battle to reunite the children with their mother, or at least allow the children to reside with the grandparents until the facts in the case are clear to all parties.

As a sitting member of the Legislature's Health and Human Services Committee Dugay has heard more than his share of horror stories regarding blundered child protection actions by DHS that were undertaken reportedly for the best interest of the child.

The most egregious example took place in 2001 when 5-year-old Logan Marr was suffocated to death after her foster mother, a former DHS case worker, decided to punish the little girl by wrapping her in duct tape.

"My involvement in this case didn't come out of the blue and DHS practices have been called into question," Dugay said. It seemed reasonable to me that I should respond to this constituent's request, and my privilege to do so is protected by law.

Under Title 22, Maine law allows "an appropriate state executive or legislative official with responsibility for child protection services" to have access to DHS records providing "no personally identifying information may be made available unless necessary to that official's functions."

In her ongoing functions as guardian ad litem, a person delegated by the court to safeguard the interests of children in DHS care, the lawyer objected to Dugay's appearance at a court hearing involving the mother's visits with her children.

Dugay said he began to suspect the guardian ad litem was mischaracterizing the relationship between the mother and her children in order to frustrate any attempt to reunify the family. The guardian had stated that it appeared to her the children were upset and not enjoying their visits with their mother. In order to determine whether changes should be made in the laws defining the responsibilities of a guardian ad litem, Dugay accepted the invitation of his constituent's family to observe an actual meeting between the mother and her children in Lewiston.

"The kids were very happy to see their mother and were not emotionally upset in any way, which only heightened my suspicions regarding the guardian ad litem's (statement)," he said.

During the visit, Dugay requested further information from the court and DHS regarding the case. That was the final straw for the guardian ad litem, who fired a motion to York County District Court Judge Christine Foster, a former DHS worker herself, and asked her to intervene.

The guardian ad litem asked the court to prohibit the disclosure of records and the attendance during the children's visits with their mother by anyone other than the biological parents', attorneys, moving intervenors and their attorney, the DHS and guardian ad litem."

"In other words, everybody except me," Dugay said.

In her motion, the guardian ad litem further implied that Dugay's actions were not of an unbiased legislative official, but of one who was involved with the mother's family.

"It is unclear if he [Dugay] is acting in his official capacity or as an advocate for the family," the guardian wrote.

In either event, the guardian ad litem insisted Dugay's presence at a meeting between the mother and her children was "outside the scope of the statute" that allowed a legislative official's involvement in an ongoing child welfare case.

The guardian ad litem asked the court to find that DHS had violated state law protecting a child's confidentiality by permitting Dugay's attendance at the meeting between the children and their mother and, essentially, rule the state representative's involvement in the case was "not in the children's best interest."

The guardian further asked the court to punish the DHS worker who permitted Dugay to attend the visit with a $500 fine or imprisonment of no more then 30 days.

During a court hearing Thursday in Springvale, Judge Andre G. Janelle barred Dugay and a newspaper reporter from the proceedings while, according to the children's grandfather, the guardian ad litem and Assistant Attorney General Lise Wagner discussed the state representative's activities in detail.

The court reportedly took no action on any of the guardian's requests, but did suggest that "third parties" should not have access to DHS records.

"I guess that means me," Dugay said.

Wagner refused to comment on the state's role in the proceeding.

The children's grandfather perceived the entire proceeding from a more sinister perspective, claiming that the court had invoked a shield to prevent public scrutiny of what he describes as the state's mismanagement of the entire action.

"They're just protecting their own butts," the grandfather said of the court, the guardian ad litem and the Attorney General's Office. "One just protects the other."

Frustrated after being denied information he believed could drive needed changes to the DHS Child Protective Services Division, Dugay said he will meet with attorneys and legislative leadership to determine what action he should take next.

"We need to know what kind of recourses are available for legislators who find themselves in this kind of a situation," he said. "The law clearly states that legislative officials should have access to the kind of information that was sought in this case."