The state agency that oversees child protective services and a legislative oversight committee have filed opposing written arguments over access to confidential case records, a legal dispute that lawmakers say will test the Maine Constitution’s separation of powers.

The Legislature’s powerful Government Oversight Committee sued the state Department of Health and Human Services after the agency refused to comply with a subpoena to provide the committee with confidential child protective case files as part of its investigation into the deaths of four young children in the summer of 2021.

Instead of giving the information to lawmakers, the agency delivered the files to the state’s independent, nonpartisan watchdog agency, the Office of Program Evaluation and Government Accountability, which will review the records and issue a report to the committee. DHHS maintains that the accountability office, not the committee, is allowed to receive the information under state law.

The oversight committee voted 8-1 to file a motion to compel compliance with the subpoena against the state on Oct. 19. Since then, both sides, who are represented by different lawyers in the Attorney General’s Office, have traded arguments in legal briefings.

At issue is whether state and federal law allow the oversight committee members to receive confidential information. State law allows the release of confidential information to “an appropriate state executive or legislative official with responsibility for child protective services, provided that no personally identifying information be made available unless necessary to that official’s functions.”

Chief Deputy Attorney General Christopher Taub, who is representing the oversight committee, said the committee meets that definition and would take adequate measures to ensure the confidentiality of those documents. Assistant Attorney General Ariel Gannon has argued the opposite, saying that releasing the information to the committee is not allowed and could compromise confidentiality and federal funding.

“Following the tragic deaths of four young children, the GOC is scrutinizing the Department’s child protective services to ensure that everything reasonably possible is being done to protect Maine’s children,” Taub argued in his Oct. 25 filing.

“The GOC’s work must be allowed to continue,” he continued, “and it is unfathomable that the GOC would be denied access to those records that would most directly and concretely shed light on the adequacy of the Department’s child protective services.”

Gannon argued that DHHS is complying with the law and requested the court award the agency attorneys fees and other relief.

“The complaint fails to state a claim on which relief can be granted,” she wrote. “Wherefore, DHHS demands judgment against Plaintiff and for its costs and such other and further relief as the Court deems just.”

AG spokesperson Danna Hayes said Tuesday that both sides have now filed their written arguments and the Kennebec County Superior Court could either schedule a hearing for oral arguments or decide the case.

“We cannot predict when that will happen,” Hayes said.

No timetable has been set, other than a July 12 deadline for discovery. That’s despite a written request from the GOC to expedite the case, because of the importance of identifying any possible systemic issues within the agency that may be placing children in dangerous situations. Lawmakers acknowledged that the court is facing a backlog because of the COVID-19 pandemic.

“We nevertheless wish to respectfully convey our strong belief that the matter for which we seek redress is of utmost urgency and one with profound implications for vindicating and upholding the Separation of Powers central to our Maine Constitution,” committee members wrote in an Oct. 25 letter.

The case has been assigned to Justice William Stokes, who set a discovery deadline of July 2023.

Maine’s child protective services program has been under scrutiny in recent years because of high profile cases of abuse and neglect that have left several young children dead.

The most recent investigation stems from the deaths of four children under the age of 4 who died in June and August of 2021.

Jaden Harding was found dead in Brewer on June 1, 2021. He was just 6 weeks old. His father, Ronald Harding, is accused of shaking his son to death and has been charged with manslaughter. Jury selection and a trial are scheduled for Feb. 27.

Five days after Harding’s death, 3-year-old Hailey Goding was found dead in Old Town. Police arrested her mother, Hillary Goding, and charged her with manslaughter. Hillary Goding pled guilty to manslaughter and was sentenced to serve 19 years of a 26-year jail sentence.

Then on June 20, 3-year-old Maddox Williams of Stockton Springs died after being taken to a local hospital with what prosecutors say were “inflicted injuries.” The medical examiner determined Williams was a victim of battered child syndrome. And a jury found Williams’ mother, Jessica Trefethen, 36, guilty of depraved indifference murder. She will be sentenced on Dec. 20.

Both Goding and Williams had prior contact with state child protective services.

And Reginald Melvin of Milo was indicted on a murder charge in the death of his month-old son Sylus Melvin in August 2021. A trial date has not been set.

GOC members have pressed for access to the full case files to determine the extent that the state was involved in any of these cases, saying that previous inquiries have been hampered by the lack of access to detailed case files.

In all, 29 children died last year and at least 27 had some sort of child protective history before or during their lives, according to state data, which is not a comprehensive list of all child deaths. That doesn’t include five deaths in which criminal cases have been filed. So far in 2022, seven deaths of children who had child protective history have been tracked by DHHS.

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