ALECOMM

The lawsuit in federal court offered a rare public glimpse into a process usually handled privately as part of the state’s Child Protective Services system and in family court. It also objected to a practice DHHS caseworkers rely on in emergencies to remove children from environments they consider unsafe without securing court orders. That practice, the use of out-of-home safety plans, has received increased attention within DHHS as Maine’s child welfare system has come under scrutiny recently following the deaths of two young girls whose families were involved with Child Protective Services.

Toni Barronton, 33, claimed in the lawsuit that DHHS violated her right to due process after it reneged on a decision to let the girl live with her temporarily after her father, Patrick Lynn, 32, allegedly violated his probation by using drugs.

Lynn’s girlfriend allegedly has not allowed Barronton to see the girl since Easter. Prior to his arrest, Barronton had weekend visits with her daughter twice a month, even though Lynn has sole parental rights and responsibilities, according to court documents.

Parental rights and responsibility refer to decision-making over children, such as where they attend school, the religion they practice and the doctor they see. Legally, Lynn may make those decisions without consulting Barronton, but the department has acted as if Barronton’s parental rights have been terminated when they have not been, her attorney, Ezra Willey of Bangor, said.

The lawsuit was filed in May in U.S. District Court in Bangor. It is rare for a case concerning a family matter and the state’s child welfare program to be filed in federal court.

Under Maine law, matters involving children, including divorces and protective custody cases, are not public. The federal court case made public details that ordinarily would be sealed in state court.

Walker called the argument Willey presented “misguided.”

“Clearly, the state has afforded and continues to afford Barronton access to procedural due process based on her natural parental relationship to [her daughter],” he said.

Jackie Farwell, spokeswoman for DHHS, said the judge made the right decision.

“The federal judge correctly recognized that child custody matters belong in state court, where parents’ rights are fully protected,” she said Wednesday.

Willey said Thursday that he would file additional motions in the case and would consider appealing Walker’s decision to the 1st U.S. Circuit Court of Appeals in Boston. The attorney also said that Walker does have the authority to rule on an administrative action by a state agency, which is what Barronton asked him to do.

“What my client is challenging is the DHHS administrative action that was taken by a caseworker to place my client’s child with a non-family member, through a ‘safety plan,’ when there were no safety or other concerns with my client, but instead the concerns were with the child’s father,” Willey said. “This is absolutely unconstitutional conduct. No one, other than a judge, can prohibit or otherwise block contact between a biological parent and her child, especially when the other parent cannot have contact or otherwise make decisions for the child due to safety concerns on his end.”

The attorney said that the only place Barronton could challenge the safety plan was in federal court because under Maine law it could not be challenged in state court.

“That is the issue,” Willey said. “So, the judge essentially gave DHHS the green light to do whatever they want, outside of the scope of state court, to interfere with a parent’s fundamental, constitutional right to parent her child free from governmental interference, with no repercussions. That is a very dangerous precedent set by this judge — this case boils down to constitutional checks and balances, and my client was depending on the federal judiciary to place some limits on the overwhelming power of DHHS.”

In addition to the federal lawsuit, Willey has filed in Bangor District Court a motion to modify the custody agreement that gave sole parental rights and responsibilities to Lynn after Barronton did not show up for a court hearing three years ago.

A hearing in that matter has not been set, according to Willey.

Lynn is scheduled to be sentenced on the probation violation, which he has admitted, on Aug. 29 at the Hancock County Courthouse in Ellsworth.

While federal judges do not ordinarily consider child custody cases within the U.S., federal courts have jurisdiction in child custody cases under the Hague Convention on the Civil Aspects of International Child Abduction.

A mother living in Mexico earlier this year sought to have two of her children returned to her after they visited their father in Maine. The case was settled out of court and the children are to be returned to their mother next week, according to documents filed in federal court in Bangor.

Source : https://bangordailynews.com/2019/07/12/news/bangor/federal-judge-dismisses-lawsuit-against-dhhs-from-mother-seeking-contact-with-her-daughter/