Cunha v. Dep't of Health and Human Svs.

• Court: Superior Court of Maine
• Decided: July 20, 2010
• Docket: YORap-08-039
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-08-039 /··7 '/r,( '/ ! '. I' . , 7/~D/;;"'I) /:.)

JILL CUNHA and TIM LUNA,

Petitioners

v. ORDER

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent

Jill Cunha and Tim Luna, foster parents, appeal from the final action of the

Commissioner of the Department of Health and Human Services (DHHS), pursuant to

22 M.R.S.A. § 4088 (2007). The Commissioner rejected the administrative hearing

officer's recommended decision, substantiated Ms. Cunha and Mr. Luna for abuse or

neglect, and affirmed the denial of their application to renew their Family Foster Care

license. The petitioners contend that the Commissioner's decision contains errors of

law, is not supported by adequate evidence on the record, and is a result of an arbitrary

review amounting to an abuse of discretion. Taken as a whole, the record does not

support the Commissioner's conclusions. Her final action will be vacated and the

matter remanded for further proceedings consistent with the court's findings.

BACKGROUND In 2007 Ms. Cunha and Mr. Luna were licensed to run a "regular" Family Foster

Home for up to four female children ages 2 to 8. (Exh. D4 at 2, 5.) The petitioners were

not licensed as a "specialized" or "therapeutic" foster home authorized to take in "moderately to severely handicapped children having mental, physical and emotional

problems ...." 10-148 C.M.R. Ch. 15. Summary (2009); (see Exh. D4 at 2, 5.) The

petitioners first received their license on June 22, 2000, and their last license expired on

October 31, 2007. (Exh. D4 at 2, 5.)

At the time relevant to this appeal Ms. Cunha and Mr. Luna lived with Ms.

Cunha's 20-year-old daughter, Caetlin, Caetlin's infant daughter Haley, and Ms.

Cunha's 17-year-old daughter Valerie. (Administrative Hearing Recommendation,

hereafter AHR) They shared their residence with four foster children, all of whom had

been assessed by DHHS as requiring therapeutic foster care before being placed into the

petitioners' home. (June 26, 2008 Hearing at 149.) Three of the foster children were 8

years old: the twins Hy and Hh, and cc. (AHR at 8.) CR the fourth foster child, was 14

years old when placed with the petitioners on February 5,2007. (AHR at 7-8.) CR had a

history of sabotaging foster-care placements, and had just been released from Acadia

Hospital where she was treated for suicidal ideations that occurred during her prior

placement. (AHR at 7-8.) Immediately before CR joined the petitioners' household, the

twins Hy and Hh had left the home to attempt a reunification with their birth mother.

(AHR at 8; Exh. D4 at 6.) The attempt failed, and the twins returned to Ms. Cunha's care

shortly after CR's arrival. (AHR at 8.)

On the evening of May 19-20, 2007, an incident occurred that resulted in CR

permanently leaving the petitioners' home. (See Exh. D4 at 1.) This incident led to the

petitioners being referred to DHHS on June 28, 2007, under allegations of neglect. (Exh.

D4 at 1.) In September 2008 an initial investigation conducted by investigator Michele

Robertson concluded that Ms. Cunha and Mr. Luna were substantiated for neglect and

an indication of emotional abuse "for failure to supervise [CR] which led to the child

being able to seriously cut herself and for failing to provide appropriatelimmediate

2 medical treatment for the injured child." (AHR at 11; Exh. D4 at 16.) The investigation

also found violations of the licensing requirements for a Family Foster Home, and in

November 2008 the petitioners' license renewal application was denied. (Exh. D4 at 16;

AHR at 1.) These actions were upheld after a review. (AHR at 1.)

Ms. Cunha and Mr. Luna appealed and the Commissioner appointed attorney

Jeffrey Strickland to serve as hearing officer and conduct a de novo inquiry. (AHR at 1.)

The Commissioner's order of reference, dated February 4, 2008, identified the specific

issue for consideration to be: "Was the Department correct when it found that Jill Cunha

subjected the child and/or children named in the substantiation letter of September 28, 2007 to

abuse or neglect or failed to protect the child and/or children from abuse or neglect?" (AHR at

1.) Nine days of hearings were held in the spring and early summer of 2008. After

hearing all the testimony and reviewing the parties' exhibits, the hearing officer

concluded that Ms. Cunha"did not perpetrate abuse or neglect against CR" or violate

any licensing rules. (AHR at 10-11.) In his recommended decision issued on September

5,2008, the hearing officer made extensive findings of fact and explained the reasons for

his decision at length. (See AHR at 7-10, 11-20.) The material facts included:

• 7. On May 19, 2007, at approximately 5:00 pm, Claimant Jill Cunha arrived at her residence with her daughter Valerie and granddaughter ... after running some errands.

• 8. At that time, Claimant was informed ... that CR had been behaving disruptively during Claimant's absence, to include arguing with Claimant's daughter Caetlin, shouting at the other foster children, and throwing a pencil or pencils in the house.

• 9. Following the above, CR announced that she was leaving the Family Foster Home and then began packing her clothing and personal effects.

• 10. Following a series of telephone conversations between Claimant, CR, Counseling Services, Inc., and [DHHS], Claimant Jill Cunha informed CR to the effect that alternate accommodations could not be

3 arranged for her that evening, that she (Ms. Cunha) was going to bed now, and that CR should do the same.

• 11. During the course of the above events, CR had remained adamant that she was leaving the Foster Home and continued with packing up her possessions.

• 12. Following her last conversation with CR, Claimant went to her bedroom, locked the door, changed into bedclothes, and called her friend Lori Markie.

• 13. At approximately 10:30 pm that evening, shortly following the above, CR came to Claimant's door, tried the knob, and announced that she was going to cut herself and get blood on Claimant's rug.

• 14. Immediately following the above, CR went from Claimant's door back to the kitchen.

• 15. Claimant at that time got up and went to the kitchen, where she found CR seated at the kitchen table, repeatedly cutting her right forearm with a steak knife.

• 16. Upon seeing the above, Claimant immediately ordered CR to stop cutting herself ... at which point CR ceased cutting herself, rinsed the knife off in the sink and started to put it into the dishwasher; Claimant at that time told CR to throw the knife away (into the trash) instead.

• 17. Following the above, Claimant called [DHHS] (Child Protective Intake) and informed them as to what had occurred.

• 18. Claimant next drove CR to the local police station, approximately one mile from the residence and collocated with the local fire department / EMS.

• 19. Finding the police station to be closed at that time, Claimant next drove back to the residence with CR and left CR in the car, parked in the driveway, while she (Claimant) called 911 regarding the situation.

• 20. The telephone from which Claimant called 911 was mounted on the wall directly adjacent to a door opening on, and allowing direct observation of, the driveway.

• 21. After deciding that she would drive CR to the hospital herself, Claimant secured CR's MaineCare card and a few other items and then took CR to Yark Hospital, meanwhile leaving her daughter Caetlin in charge of the other children.

4 • 22. CR was seen in triage and subsequently admitted to York Hospital at approximately 11:10 pm on May 19, 2007.

• 23. Upon admission to York Hospital, CR was first interviewed by Crisis Response Service personnel and afterward received medical treatment for superficial lacerations of her right forearm.

• 24. Following the above, CR remained at York Hospital and was subsequently placed elsewhere, based on Claimant's refusal to take CR back.

• 25. Hy and Cc, who had been involved in ongoing therapy since shortly after CR's placement with Claimants, related nothing regarding the above events or otherwise indicated any awareness of those events to their therapist during subsequent treatment sessions.

• 26. Claimant was instructed by the children's therapist not to bring up the events of May 19, 2007, with Hy and Cc.

• 27. No behavioral changes were observed in Hy or CC by their teachers following the events in question, other than in connection with her eventual removal from Claimant's Family Foster Home.

• 28. Claimant maintained continuous contact with [DHHS] concerning CR's care needs throughout the course of CR's placement with Claimants.

• 29. Claimant participated in Department-sponsored intervention concerning CR, to the extent such was made available, throughout the course of CR's placement with Claimants.

• 30. Claimant facilitated, to the extent practicable, scheduled telephone contacts between CR and her natural parents throughout the course of CR's placement with Claimants.

(AHR at 8-10.)

From the above, the hearing officer concluded that Ms. Cunha and Mr. Luna had

not perpetrated abuse or neglect against CR per 22 M.R.S.A. § 4002(1) (2008)1 and had

not violated Rules 9.A(2), (5), (10), 9.C, or 9.D(2) of 10-148 C.M.R. Ch. 16 by: failing to be

emotionally stable individuals able to exercise good judgment; failing to understand

'''Abuse or neglect' means a threat to a child's health or welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these, by a person responsible for the child." 22 M.R.S.A. § 4002(1) (2008).

5 and meet the developmental and individual needs of children; failing to accept the

relationship of CR with her family or cooperate with visitation arrangements; by

subjecting CR to verbal abuse or derogatory remarks about her or her family; or "by

failing to provide supervision and care meeting the needs of CR's age, level of

development, independence, and responsibility." (AHR at 11-12.)

In discussing his conclusions, the hearing officer explained "there is insufficient

basis in the facts presented on which to base a conclusion that Claimant Jill Cunha

perpetrated abuse or neglect upon CR as those terms are defined in the applicable

statute. (AHR at 17.) Instead, the evidence showed "that CR had a history of self­

injurious tendencies" that predated her involvement with the petitioners. (AHR at 17.)

The petitioners were "neither licensed nor trained to provide [the] therapeutic level

Foster Care" CR required, and were not fully aware of CR's history when they accepted

the placement. (AHR at 12.) Ms. Cunha "gradually became aware of CR's extensive

requirements" and communicated her behaviors to CR's caseworker while fully

participating in "Department-sponsored intervention (CSI-ACT meetings) to the extent

such assistance was made available." (AHR at 13.) DHHS often cancelled these

meetings due to CSI staff unavailability. (AHR at 13.)

Regarding CR's biological parents, the hearing officer explained that there was

no evidence that Ms. Cunha or Mr. Luna had actually discouraged or interfered with

CR's ability to contact and communicate with her parents. (AHR at 13.) While the home

only had one phone line and CR was once interrupted during a conversation with her

mother, the hearing officer found that this did not amount to an attempt to deprive CR

of parental contact. (AHR at 13.) Similarly, the "derogatory remarks" DHHS accused

Ms. Cunha of making about CR's parents related to CR's parents' failure to adhere to an

agreed-upon phone schedule. (AHR at 13.) CR's parents were responsible for "initiating

6 and terminating telephone calls according to schedule, but were often remiss in doing

so...." (AHR at 13.) This did not constitute a sufficient basis to support DHHS's

allegations.

Leading up to the night of May 19, 2007, "CR was subject to various emotional

stressors outside of [the petitioners'] control ... includ[ing] contact with her natural

mother during which CR was informed by her mother that she (CR) ... would remain in

foster care until age IS." (AHR at 13.) CR's mother also told "CR that she (CR's natural

mother) was going to be living in a homeless shelter." (AHR at 13.) CR had also

"attended a school dance earlier in the week ... which unfortunately proved to be a

very disappointing experience ..., that she reported feeling ill prior to going to work

and that she began her period at work that day." (AHR at 14.)

On the evening of the incident, Mr. Luna was at work and Ms. Cunha had left

Caetlin in charge while she spent the afternoon helping her daughter Valerie prepare

for Valerie's high school prom. (AHR at 14, 19.) When Ms. Cunha returned, the other

foster children told Ms. Cunha that CR had been acting out. (AHR at 14.) CR threw

some paper cups at Ms. Cunha and swore at her, threw some toys that were in the

living room, and began to pack her personal effects into garbage bags. (AHR at 14.) She

repeatedly asserted that she was leaving the home, and asked "to call I-S00-HELP or

774-HELP in order to effect her removal from the Cunha/Luna residence." (AHR at 14.)

Ms. Cunha told CR that they could call the Counseling Services Inc. (CSI) crisis line

after the other children were put to bed. (AHR at 14.)

Ms. Cunha did call the CSI crisis line "and related what had been going on with

CR up to that point, indicating that CR was packing up her belongings as she had done

on previous occasions when upset.... [T]he CSI worker asked if CR was out of control

or yelling at that point, to which Ms. Cunha replied in the negative." (AHR at 14.)

7 Following the call, CR asked whether Ms. Cunha had called "and indicated that she

(CR) wished to talk to crisis personally. Ms. Cunha therefore agreed to call csr back

after the other children were put to bed, which she did; Ms Cunha was informed at that

time that she needed to call DHHS instead." (AHR at 14.)

Ms. Cunha did call DHHS and then handed the phone to CR, who took it into

her room to speak with the worker. (AHR at 14.) During this conversation the evidence

shows that Ms. Cunha's "daughter Caetlin picked up the phone and asked CR to be

quiet so as not to wake the baby." (AHR at 14.) When CR had finished speaking to the

intake worker, she returned the phone to Ms. Cunha. (AHR at 14.) The intake worker

then told Ms. Cunha that a duty worker would call Ms. Cunha back. (AHR at 14.)

DHHS's "records indicate that cpr had attempted to calm CR down and that '[CR] said

that she was going to kill herself if she had to stay [in the Cunha/Luna household] any

longer.'" (AHR at 15.)

At 9:14 pm duty worker Christina Smith called Ms. Cunha, who informed Ms.

Smith of the recent stressful events in CR's life. (AHR at 15.) DHHS's records indicate

that:

Ms. Cunha informed Ms. Smith that cpr had managed to calm CR down, that CR was just following her around the house at that point, and that Ms. Cunha did not feel that CR was at risk of hurting herself at that point. Ms. Cunha further informed the worker that CR "routinely threatens to hurt herself but has never followed through, she packs her things, but doesn't leave."

... Ms. Smith concluded the telephone call by advising Ms. Cunha "to just go to [CR], tell her that she is ready to pull the plug on today, wish [CR] sweet dreams and hope that she feels differently tomorrow."

(AHR at 15.)

Ms. Cunha relayed this conversation to CR, telling her that DHHS could not

move her that night and that she (Ms. Cunha) was going to bed. (AHR at 15.)

8 The evidence indicates that Ms. Cunha then went to her room, locked the door, changed into bedclothes and called her friend Lori Markie. While Ms. Cunha was on the phone with Ms. Markie, CR came to the door and tried the doorknob; finding the door to be locked, CR then announced that she had a knife and that she was going to cut herself and get blood on Ms. Cunha's carpet.

Evidence in the record conflicted on whether Ms. Cunha did or did not fear for

her own safety at this moment. (AHR at 17.) The hearing officer determined that it was

"immaterial, although it would not necessarily have been unreasonable for her to be

fearful under the circumstances." (AHR at 17.) At the hearings Ms. Cunha testified "that

she was able to see CR's shadow under the door, that she was able to detect CR moving

away from the door (toward the kitchen) immediately upon making her announcement

and that she (Ms. Cunha) got up and opened the door as soon as CR's shadow

disappeared from the threshold" all in the course of a few seconds. (AHR at 15.) She

further testified that she followed CR to the kitchen, stopping en route to alert her

daughter Caetlin and ask her to check on the other children. (AHR at 16.) Ms. Cunha

remained on the telephone with Ms. Markie until entering the kitchen where she found

"CR seated at the table and cutting her forearm repeatedly with a steak knife." (AHR at

16.) Ms. Cunha hung up with Ms. Markie and "firmly told CR to stop ... whereupon CR

stopped cutting herself" and told Ms. Cunha, "now I'll get the f_ out of here." (AHR

at 16.) CR rinsed the knife in the sink and began to place it in the dishwasher, but Ms.

Cunha told her to put it in the garbage which CR did. (AHR at 16.)

At 10:30 pm Ms. Cunha paged Ms. Smith, who called back and "suggested that

Ms. Cunha call mobile crisis but could not provide her with a number." (AHR at 16.)

Ms. Cunha testified that she then told CR to cover her wounds and put on a coat, but

that CR refused and indicated that she would not place any covering on her arm. (AHR

9 at 16.) Ms. Cunha then drove CR to the local police/EMS station approximately one

mile from the residence. (AHR at 16.) On finding it closed, they returned to the home

and Ms. Cunha called 911. (AHR at 16.) CR stayed in the vehicle while it was parked in

the driveway. (AHR at 16.) "After speaking with the 911 operator, Ms. Cunha elected to .'

drive CR to the hospital herself versus waiting for an ambulance, leaving Caetlin in

charge of the other children." (AHR at 16.) DHHS determined that Ms. Cunha wanted

to avoid calling an ambulance "to avoid the disturbance of having sirens and lights

arrive at the residence late at night." (AHR at 16.) Ms. Cunha also testified that her

actions were motivated by the belief that removing CR from the home as quickly as

possible would avoid further escalation of CR's crisis. (AHR at 18.)

Ms. Cunha retrieved CR's MaineCare card and some other items, then departed

for York Hospital. (AHR at 16.) CR was admitted and "treated for multiple superficial

lacerations to her right forearm (wounds irrigated and closed with surgical adhesive)

after being seen by a Crisis Response Services worker." (AHR at 16.) At least 50 minutes

elapsed from the time CR arrived at the hospital and the time her wounds were treated.

(AHR at 16.) Ms. Cunha returned home to retrieve the belongings CR had packed into

trash bags as well as her medications. (AHR at 16.) Ms. Cunha's 17-year-old daughter

Valerie had returned from the prom and accompanied Ms. Cunha back to the hospital.

(AHR at 16.) DHHS reported that "Valerie was behaving flippantly or inappropriately

at the hospital, causing the person at the hospital desk to ask as the two were leaving

the hospital, 'do you have a problem?'1 to which Valerie responded that she did not. ...

There is no evidence that the alleged, unspecified behavior by Valerie" was witnessed

by CR. (AHR at 16.)

From the above, the hearing officer found that "the evidence does not support

that Ms. Cunha in some way actually caused CR to injure herself on the evening in

10 question." (AHR at 17.) The record also did not support DHHS's suggestion "that Ms.

Cunha barricaded herself in her room and refused to intervene or even to request

appropriate assistance for CR, who she knew to be standing on the other side of the

door cutting herself with a knife and possibly even preparing to visit similar violence

upon the other children sleeping in their room." (AHR at 17.) Instead, as the evening's

events unfolded there was no indication "that CR was showing any sings of harming

herself ... [and] Ms. Cunha believed that CR was not going to injure herself, based on

her telephone conversations with [DHHS]." (AHR at 17.) At Ms. Smith's suggestion,

Ms. Cunha went to bed. (AHR at 17.) When CR did knock on Ms. Cunha's door and

announce her threat, "the evidence supports that CR immediately went from Ms.

Cunha's bedroom door to the kitchen ... and that Ms. Cunha immediately got up and

went to the kitchen to assess the situation; Ms. Cunha remained on the phone with her

friend during the time and related to her what was happening." (AHR at 17.)

The hearing officer concluded: "Ms. Cunha's actions were not inappropriate

under the circumstances." (AHR at 17.) Given CR's prior threats, Ms. Cunha had no

reason to believe that she was actually following through with her promise to cut

herself until witnessing the act in the kitchen. (AHR at 17.) Thus, "Ms. Cunha's actions

were, under the circumstances, at least as sensible as hanging up with Ms. Markie,

calling 911, and attempting to communicate with a 911 operator while simultaneously

trying to determine what was actually happening." (AHR at 17.) The evenings' "events

occurred in rapid succession, and there was simply nothing that Ms. Cunha reasonably

could have done to prevent this from occurring." (AHR at 18.) All of her "actions were

reasonable and appropriate under the circumstances." (AHR at 18.)

Turning to the events following May 19-20, 2007, the hearing officer noted that

DHHS maintained: "The fact that [Ms. Cunha] has consistently denied the possibility

11 that these children were impacted by the incident demonstrates lack of good

judgment." (AHR at 18.) While the evidence indicated that the children Hy and CC

eventually reported hearing the incident and being frightened, evidence also supported

Ms. Cunha's belief that the children had not been negatively impacted. (AHR at 19.)

The children's counselor, Melissa Ianaconne, testified that the children never

mentioned the incident during therapy, and Ms. Ianaconne advised Ms. Cunha not to

bring the subject up. (AHR at 19.) Ms. Ianaconne also testified that the children "were

thriving and well-cared for by Ms. Cunha, and that Ms. Cunha had always been

responsive, appropriate, and very dedicated in her dealings with her." (AHR at 19.)

Audry Yeaton, Hh's counselor, "similarly testified that, to her knowledge, the children

were not aware of the cutting incident involving CR." (AHR at 19.) The children's

teachers also testified that "no changes in behavior were noted in any of the children

following the cutting incident" until the children were removed from Ms. Cunha's

care." The teachers believed that "Ms. Cunha was actively involved in the children's

education, that all three children appeared well-cared for, and that they were well­

adjusted, happy, and generally doing well in school while in her care." (AHR at 19.)

Turning to Mr. Luna, the hearing officer briefly noted that "no findings were

described in [DHHS's] notice concerning Mr. Luna relative to the denial of application

for renewal of the couple's Family Foster Home license." (AHR at 19.) Mr. Luna was

working during the evening of May 19, 2007, and usually works forty-seven hours per

week at night. (AHR at 19.) His involvement with the children was appropriate to his

work schedule. (AHR at 19.)

Taking the record as a whole, the hearing officer believed that "the evidence in

this case does not support that [DHHS] was correct in finding that [the petitioners]

subjected CR to abuse or neglect or failed to protect CR from abuse or neglect, or in

12 denying [the petitioners'] application for renewal of a Family Foster Home license."

(AHR at 19-20.)

The hearing officer's recommendation went to the Commissioner for review,

with responses and exceptions filed by both parties. The petitioners' exception was not

considered because it arrived late. In her final decision dated November 13, 2008, the

Commissioner declined to accept the hearing officer's findings of fact numbered 15 and

29. Finding of fact 15 stated that after CR threatened to cut herself and left Ms. Cunha's

door,

Claimant at that time got up and went to the kitchen, where she found CR seated at the kitchen table, repeatedly cutting her right forearm with a steak knife.

(AHR at 8-9.) The Commissioner instead found:

Ms. Cunha waited to make sure that CR was not still outside her bedroom door, and that Ms. Cunha then waited to see if CR was going to come back before she got up to go into the kitchen.

(Final Decision at 1.) The hearing officer's finding of fact 29 stated:

Claimant participated in Department-sponsored intervention concerning CR, to the extent such was made available, throughout the course of CR's placement with Claimants.

(AHR at 9.) The Commissioner rejected this and instead found:

[A]lthough Ms. Cunha received services from [CSI] regarding how to deal with CR, Ms. Cunha did not follow the recommendations from Michael Mahar, Clinician for [CSI], which included instructions that Ms. Cunha not allow her biological children to drive CR around and instructions that Ms. Cunha was to maintain her role as the parental figure."

(Final Decision at 1.)

Moving on from the hearing officer's findings of fact, the Commissioner stated:

I also decline to accept the Hearing Offer's conclusions, found at pages 10-11 of the Recommended Decision. Instead, I find the opposite for each conclusion. I base my determination on the simple fact that it is

13 unacceptable for a foster parent to behave the way Ms. Cunha did on the night in question.

(Final Decision at 1.) The Commissioner cited the following facts, implicitly overruling

or modifying the hearing officer's inconsistent findings:

• "Ms. Cunha knew of CR's history of engaging in unsafe behavior" and had ongoing problems with her behaviors.

• "Ms. Cunha knew that CR was highly upset, but minimized CR's threats."

• Ms. Cunha went into her bedroom to escape CR because CR was following her around.

• "Ms. Cunha inexplicably decided to stay in her bedroom, talking to her friend on the phone, despite the fact that CR was standing outside her bedroom door, threatening to cut herself with a knife."

• "Ms. Cunha failed to check on, or show concern for, the safety of the other three children who were sleeping next door to Ms. Cunha's bedroom while CR was outside the door threatening to cut herself."

• "[T]he children were negatively impacted by the cutting incident and ... Ms. Cunha's consistent denial of the possibility that these children were impacted by the cutting incident demonstrates a lack of good judgment."

• Ms. Cunha failed to obtain prompt medical attention for CR.

• Ms. Cunha spoke negatively about CR's biological family on more than one occasion.

• Mr. Luna failed to fulfill his supervisory role over CR.

• Ms. Cunha and Mr. Luna "[m]ore often than not" left Ms. Cunha's daughter in charge of CR.

(Final Decision at 1-2.) The Commissioner was also deeply troubled by Ms. Cunha's

inconsistent statements on whether she was afraid or not, whether she waited for CR to

leave the door or not, and whether she waited to see if CR was coming back before

opening the door. (Final Decision at 1-2.)

14 On the events of May 19, 2007, the Commissioner agreed with the Department's position that Ms. Cunha's refusal to allow CR to use the phone to call for help, Ms. Cunha's taking the phone into the bedroom and locking the door, and Ms. Cunha's failure to respond to CR's threats to cut herself, escalated CR to the point where she did, in fact, cut herself. Ms. Cunha failed to keep her eyes on CR and / or take other appropriate action to prevent injury to CR and/ or the other children in the home at that time. In fact, the record supports that Ms. Cunha failed to check on, or show concern for, the safety of the other three children who were sleeping next door to Ms. Cunha's bedroom while CR was outside the door threatening to cut herself. Ms. Cunha's actions were inappropriate ....

(Final Decision at 2.) In closing, the Commissioner found that the Department correctly

denied Ms. Cunha and Mr. Luna's application for a license to operate a Family Foster

Home, and that "Ms. Cunha did perpetrate neglect against CR," and that the petitioners

violated the rules for the Licensing of Famil y Foster Homes as alleged. (Final Decision

at 2.)

On December 11, 2008, Ms. Cunha and Mr. Luna petitioned this court for judicial

review pursuant to M.R. Civ. P. 80C. The petitioners contend that the Commissioner's

final decision was arbitrary and capricious insofar as she did not engage in any

meaningful review of the hearing officer's recommendations, made findings

unsupported by the record, and drew erroneous legal conclusions. They request that

this court vacate and reverse the Commissioner's decision.

DISCUSSION

When reviewing an agency decision in its appellate capacity, the court directly

examines the record before the agency and reviews its decision for errors of law, abuses

of discretion, or "factual findings not supported by substantial evidence in the record."

Kane v. C0111171'r of the Dept. Health & Human Servs., 2008 ME 185,

1200 (quoting Wheaton v. Dep't of Health & Human Servs., 2008 ME 48,

570) (quotations omitted). When reviewing the record the court must determine

"whether, on the basis of all the testimony and exhibits before it, the agency could fairly

15 and reasonably find the facts as it did." friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010

ME 18, 113, 989 A.2d 1128, 1133 (quoting Int'l Paper Co. v. Bd. of Envtl. Prot., 1999 ME

135/IT 29, 737 A.2d 1047, 1054) (quotations omitted). The court will only reverse the

agency's decision if the "record compels a contrary conclusion to the exclusion of any

other inference." Kelley v. Me. Pub. Empls. Ret. Sys., 2009 ME 27, 1 16, 967 A.2d 676, 682

(quoting Hale-Rice v. Me. State Ret. Sys., 1997 ME 64, 117, 691 A.2d 1232, 1237)

(quotations omitted).

Based on Ms. Cunha's actions on the night of May 19-20, 2007, DHHS found" a

Substantiation of Neglect to CR for failure to supervise her" and "an Indication of

Emotional Abuse to the three younger children in the home for subjecting them to

emotional distress ...." (Exh. D4 at 17; Exh. D5 at 1.) DHHS's policy manual states that a

"Substantiated finding means that, by a preponderance of the evidence, a [caregiver]

has caused and/ or is likely to cause high severity child abuse and neglect." Me. Dep't of

Health & Human Servs., Child and Family Servs. Policy Manual § IV. D-1 (Aug. 10,

2005). A substantiated "person is considered a danger to children." Id. A lesser

"Indicated finding means that ... [a caregiver] has caused and / or is likely to cause

low / moderate severity child abuse." Id. An individual substantiated of abuse or neglect

has his or her name placed in a database accessible to many potential employers and is

severely hampered in obtaining or maintaining a foster care license. Id.; see 22 M.R.S.A.

§§ 4008, 4088,7703 (2009); Kane, 2008 ME 185,1117-18,23,960 A.2d at 1201-02.

"Abuse or neglect" is defined as "a threat to a child's health or welfare by

physical, mental or emotional injury or impairment, sexual abuse or exploitation,

deprivation of essential needs or lack of protection from these, by a person responsible

for the child." 22 M.R.S.A. § 4002(1) (2007); Me. Dep't of Health & Human Servs., Child

and Family Servs. Policy Manual § IV. D-1 (Aug. 10, 2005). While "abuse or neglect" in

16 a substantiation finding "may require a somewhat lesser finding" than the senous

abuse or neglect necessary to support a finding of jeopardy, a substantiation finding II

must be based on an understanding that' abuse or neglect' means .. , something more

than imperfect, overly rigid, or even deficient parenting." Kane, 2008 ME 185, 'IT 24, 960

A.2d 1196, 1203.

At the outset it is worth noting that when the Commissioner rejected the hearing

officer's recommendation on November 13, 2008, the nine days of hearing testimony

only existed as some forty-five hours of electronic recording. (See Barbara Johnson Aff.

in Support of Motion to Enlarge Time to File Certified Record 'IT 4.) Transcripts were not

prepared until early 2009. (See Id. 'IT'IT 5-6.)

The Commissioner explicitly found that when CR knocked on Ms. Cunha's door

and threatened to cut herself, "Ms. Cunha waited to make sure that CR was not still

outside her bedroom door, and that Ms. Cunha then waited to see if CR was going to

come back before she got up to go into the kitchen." (Final Decision at 1.) The first

portion of this finding, that "Ms. Cunha waited to make sure that CR was not still

outside her bedroom door," does have literal support in the record. However, the

evidence does not support the inference that Ms. Cunha was indifferent or slow to react.

Ms. Robertson reported that Ms. Cunha stated that "she did not open the door,"

but "waited, still on the phone with her friend, until she saw that [CR] had left and then

opened her door." (Exh. D4 at 8.) Ms. Robertson later testified that she did not ask either

Ms. Cunha or CR how much time elapsed between the initial knock and Ms. Cunha's

reaction. (May 7, 2008 Testimony of Michele Robertson at 74, 78, 80; June 30, 2008

Testimony of Michele Robertson at 153, 175-76.) She admitted that she was unclear on

the timeline of the evening's events, that the time between the knock and Ms. Cunha's

reaction could have been mere seconds, and that the entire episode probably lasted nol

17 more than a minute or two. (May 7, 2008 Testimony of Michele Robertson at 74, 78, 80;

June 30, 2008 Testimony of Michele Robertson at 153, 175-76.)

Ms. Cunha testified that she did not move until CR moved away from the door.

(June 30, 2008 Testimony of Jill Cunha at 25). She also testified that CR began to move

away from the door immediately after knocking and announcing that she would cut

herself. (June 26, 2008 Testimony of Jill Cunha at 42.) This means that she' waited

approximately one or two seconds before reacting to the threat. (June 26, 2008

Testimony of Jill Cunha at 42.) This is matched by Ms. Markie's impression of events,

and does not contradict Ms. Robertson's findings. (June 16, 2008 Testimony of Lori

Markie at 92-93; see Exh. 04 at 8.)

The second portion of the Commissioner's finding, that "Ms. Cunha waited to

see if CR was going to come back before" leaving her room, is supported by an

unsigned, undated account apparently prepared by Ms. Cunha? (Exh. 010 at 4.) This

characterization is not found in investigator Robertson's report. (See Exh. 04 at 8.) It

also does not directly contradict the evidence in the record regarding time. Ms. Cunha,

whose testimony OHHS cites for support, stated that when she saw CR's shadow move

away from her door she immediately began to follow. (June 30, 2008 Testimony of Jill

Cunha at 24.) Lori Markie, who was on the phone with Ms. Cunha at the time of the

incident, corroborated Ms. Cunha's account. (June 16, 2008 Testimony of Lori Markie at

92-93.) Accepting the Commissioner's determination that Ms. Cunha waited, the entire

record shows that the wait was momentary.

2 DHHS did not cite to this portion of the record when asked to provide evidence supporting the Commissioner's decision. DHHS instead directed the court to Ms. Cunha's testimony, which does not support the Commissioner's position.

18 The Commissioner's second express finding of fact stated that:

[A]lthough Ms. Cunha received services from [CSI] regarding how to deal with CR, Ms. Cunha did not follow the recommendations from Michael Mahar, Clinician for [CSI], which included instructions that Ms. Cunha not allow her biological children to drive CR around and instructions that Ms. Cunha was to maintain her role as the parental figure."

The record shows that Ms. Cunha did indeed receive services from CSI, though she

complained that they were frequently cancelled and were not adequate to meet either

her own or CR's needs. (Exh. 09 at 1; Exh. 010 at 36, 38, 43; 014 at 8-9.) The evidence

also indicates that due to Mr. Luna's work schedule, Ms. Cunha had to allow her adult

daughter Caetlin to supervise the children in order for Ms. Cunha to take full advantage

of the support available. (See 010 at 38.) This placed Ms. Cunha in the difficult position

of having to occasionally disregard CSI's recommendations in order to receive CSI's

support.

The record does support that by May 19, 2007, Ms. Cunha knew CR had a history

of unsafe behavior and knew that she was upset on the evening in question, though

CR's therapist Michael Mahar testified that he did know of any incidents where CR had

actually cut herself. (Exh. 014 at 14; May 22, 2008 Testimony of Michael Mahar at 18.)

The evidence does not, however, support the Commissioner's inference that Ms. Cunha

"minimized CR's threats" when speaking with CSI and OHS representatives. As events

unfolded on May 19, 2007, Ms. Cunha spoke with crisis workers four times in an

attempt to obtain assistance. (June 26, 2008 Testimony of Jill Cunha at 34, 207-08, 215­

16, 221, 223, 225-29, 231; June 30, 2008 Testimony of Jill Cunha at 14-15, 17.) CR would

become upset with Ms. Cunha, ask her to call OHHS, and then go to her room to pack

for approximately twenty minutes before the next encounter. (Exh. 014 at 13-14; June

26,2008 Testimony of Jill Cunha at 201-03,207-10,214-16,221,223,225-27,229-31; June

19 30, 2008 Testimony of Jill Cunha at 14-17; see May 7, 2008 Testimony of Michele

Robertson at 69-70 (CR's pattern was to go in and out).) Ms. Cunha testified that during

each call she told the crisis workers what had transpired, answered their questions, and

told them that CR was quietly packing her belongings at the time of the call. (June 26,

2008 Testimony of Jill Cunha at 34, 207-10, 223, 225-28; June 30, 2008 Testimony of Jill

Cunha at 15.) Nothing in the record contradicts Ms. Cunha's account.

Ms. Robertson did conclude that Ms. Cunha must have minimized CR's threats

because the advice Ms. Cunha received from DHHS ultimately did not prevent CR from

cutting herself. (May 7, 2008 Testimony of Michele Robertson at 69-70.) This conclusion

appears to be suspect. It starts with the premise that Ms. Cunha caused CR to cut

herself. Since Ms. Cunha was following the advice of DHHS duty worker Christina

Smith immediately before the cutting occurred, Ms. Cunha must have given Ms. Smith

bad information; otherwise, Ms. Smith would have prevented Ms. Cunha from allowing

CR to cut. Minding that Ms. Cunha was not trained or licensed to handle a highly­

troubled child like CR, it is not clear how DHHS would have reacted if Ms. Cunha had

not followed Ms. Smith's advice and CR had cut herself. The court does not need to

speculate. The essential point is that nothing in the record supports the conclusion that

Ms. Cunha "minimized" CR's threats.

There is bare support in the record for the Commissioner's finding that "Ms.

Cunha went into her bedroom to escape CR because CR was following her around."

This does not appear in Ms. Cunha's unsigned narrative account, nor does it appear in

her initial interview with Ms. Robertson. (Exh. D4 at 8; Exh. DI0 at 4.) So far as the court

can ascertain, it first appears in Ms. Robertson's testimony that Ms. Cunha gave three

reasons for going to her room: to stop CR from following her, to call Ms. Markie for

support, and because she was frightened. (March 31, 2008 Testimony of Michele

20 Robertson at 235.) The record does strongly indicate that Ms. Cunha also went into her

bedroom after Ms. Smith instructed her to tell CR "that she is ready to pull the plug on

today, wish [CR] sweet dreams and hope that she feels differently tomorrow." (Exh. D4

at 8; Exh. D10 at 4; Exh. D14 at 14, 17; March 31, 2008 Testimony of Michele Robertson at

233-34; June 30,2008 Testimony of Jill Cunha at 14; AHR at 8,

The Commissioner's finding that "Ms. Cunha inexplicably decided to stay in her

bedroom ... despite the fact that CR was standing outside her door, threatening to cut

herself with a knife," has already been addressed above. The record does not support

the Commissioner's characterization of events. Instead, the record shows that Ms.

Cunha moved quickly after CR threatened to cut herself, regardless of the subjective

thoughts or emotions she experienced in the moment.

The record lacks positive support for the Commissioner's finding that "Ms.

Cunha failed to check on, or show concern for, the safety of the other three children ...

• ff Ms. Cunha's initial narrative account of the evening and her interview with Ms.

Robertson indicate that she followed CR from her bedroom direct! y to the kitchen. (Exh.

D4 at 8; Exh. DlO at 3; AHR at 8,

the kitchen, she stopped to ask Caetlin to check on the other three foster children. (June

30, 2008 Testimony of Jill Cunha at 25, 39.) Caetlin Cunha testified to the same, as did

Ms. Markie. (June 16, 2008 Testimony of Lori Markie at 93; June 20, 2008 Testimony of

Caetlin Cunha at 212-13.) There is no dispute that Ms. Cunha later opted against calling

an ambulance because she was concerned about the sirens waking and frightening the

children. (Exh. D4 at 10.) Accepting that Ms. Cunha did not check on the children at the

time CR made her threat, it is not wholly correct to say that Ms. Cunha showed no

concern for their wellbeing that evening.

21 The Commissioner's determination that the three younger foster children were

negatively impacted by the incident has support, but the conclusion that she exercised

poor judgment does not. The twins' caseworker, Jill Hunter, interviewed them in

August and Ms. Robertson interviewed CC in September, 2007. (Exh. D4 at 12-15.) All

had witnessed CR shouting and throwing things early in the evening, and this

apparently caused Hy to remember an incident of violence she witnessed in her birth

mother's horne. (Exh. D4 at 14.) Neither Hy nor Hh reported hearing CR threaten to cut

herself or witnessed the act. (Exh. D4 at 12-14; June 16, 2008 Testimony of Jill Hunter at

59-60.) Foster child CC told Ms. Robertson that she had heard CR say something about

a knife, and this frightened her. (Exh. D4 at 15.) CR's presence in the horne clearly had

some negative impact on the younger foster children.

The record also shows that neither Hy nor CC ever mentioned the events of May

19, 2007 to Melissa Ianaconne, their social worker. (June 23, 2008 Testimony of Melissa

Ianaconne at 17,24.) Ms. Cunha approached Ms. Ianaconne and asked whether either of

them should talk to the girls about the incident. (June 23, 2008 Testimony of Melissa

Ianaconne at 23-24.) Ms. Ianaconne advised her not to bring the subject up, and

indicated that she herself would not raise the issue during sessions. (June 23, 2008

Testimony of Melissa Ianaconne at 23-24.) It is difficult to see how Ms. Cunha's decision

to follow DHHS's representative's advice constitutes poor judgment. Furthermore, the

record indicates that none of the three girls' behavior changed following CR's outburst.

To the contrary, Ms. Ianaconne and their teachers Ms. Andrade-Chase and Ms. Dow

believed the girls were well cared for and thriving. (June 23, 2008 Testimony of Melissa

Ianaconne 29-30; June 23, 2008 Testimony of Julie Dow at 96-97; June 23, 2008

Testimony of Marcia Andrade-Chase at 107-09.) The record shows that Ms. Cunha had

every objective reason to believe that the children in her care were not harmed by the

22 events of May 19, 2007. The Commissioner's conclusion that this belief reflected poor

judgment is unsupported.

The Commissioner's finding that Ms. Cunha failed to obtain prompt medical

attention for CR is also unsupported by the record. The evidence shows that Ms. Cunha

made CR stop cutting herself and immediately called duty worker Ms. Smith to apprise

her of the situation and obtain guidance. (Exh. D4 at 10; Exh. D10 at 5; D14 at 14; June

20, 2008 Testimony of Jill Cunha at 28.) Ms. Smith was only able to tell Ms. Cunha that

"she should probably call mobile crisis," but was unable to provide her with the phone

number. (Exh. D14 at 14.) Believing that an ambulance would wake the other foster

children and that forcing CR to remain in the home would risk re-escalating the

situation, Ms. Cunha then decided to drive CR to the local police/EMS station where

she believed medical assistance would be available. (Exh. D4 at 8, Exh. D10 at 5; June 30,

2008 Testimony of Jill Cunha at 34,39,51.) Following the failed attempt to obtain help at

the police station Ms. Cunha took CR to the hospital, stopping by the home briefly to

check with 911 and gather CR's MaineCare card. (D4 at 8; June 30, 2008 Testimony of Jill

Cunha at 39-40, 45.) While Ms. Cunha's belief regarding the police station was

mistaken, she did act promptly?

There is record evidence to support the Commissioner's finding that Ms. Cunha

spoke negatively about CR's family. When interviewed by Ms. Robertson, CR reported

that Ms. Cunha would talk about how her family wasn't "doing what they were

supposed to." (Exh. D4 at 11.) No specific instances of such negative talk are identified.

The record indicates that these comments may have related to CR's parents' failure to

adhere to the calling schedule, an incident where CR's mother encouraged cutting as a

way to leave the placement, incidents where CR's mother gave her information that she 3 There is conflicting evidence regarding Ms. Cunha's attempts to offer first aid.

23 was not supposed to have, and possibly an occasion where CR's mother gave her head

lice. (Exh. D4 at 9; Exh. D10 at 17, 20-21, 29-32, 34, 37; Exh. D14 at 8, 10.)

The Commissioner's determination that Mr. Luna failed to fulfill his supervisory

role over CR is not supported. Like many parents, Mr. Luna worked the night shift at

two separate jobs. (Exh. D4 at 14.) His interaction with the children was limited

accordingly. (Exh. D4 at 14.) There is no indication that he failed to act appropriately as

an authority figure when present, or that he was not available if needed.

The Commissioner's determination that Ms. Cunha and Mr. Luna left Ms.

Cunha's daughter Caetlin in charge "more often than not" has bare support in the

record. A preliminary report of alleged abuse prepared by CR's caseworker Suna Shaw

states that CR "stated ... that [Ms. Cunha] had her two daughters do a lot of the

parenting of [CR] and other children and that she felt they didnt [sic] like her so they

were mean to her." (Exh. D11 at 3.) The record shows that Ms. Cunha's daughter

Valerie would often drive CR to school, and her adult daughter Caetlin would watch

the children when Ms. Cunha needed to go to DHHS-related meetings or run other

errands. (Exh. D10 at 38; Exh. D11 at 3.) It is not clear that the record supports the

Commissioner's "more-often-than-not" characterization. Perhaps more importantly, it

is not clear that this is legally relevant.

It is not unusual for parents to labor in jobs that keep them from the very families

they work to support. It is also common for busy families to rely on older siblings to

supervise younger ones when one or both parents are occupied. While these

arrangements may not fit the mold of an ideal family, they are the reality for many good

families. See I

parenting "have likely occurred in the lives of may good, hard-working parents

striving to accommodate the combined pressures of childrearing and working").

24 DHHS substantiated Ms. Cunha as a child abuser and denied her and Mr. Luna

their Foster Care license based almost entirely on the evening of May 19, 2007. (Exh. D2

at 1-3; Exh. D4 at 17-18.) However, no causal nexus has been shown between Mr.

Luna's work schedule or the roles of Ms. Cunha's daughters on one side and CR's self­

destructive behavior on the other. Insofar as these may have been factors leading up to

CR's crisis, they are joined by CSI's failure to hold all scheduled counseling sessions

and DHHS's decision to place and keep CR in a home it knew was neither licensed nor

equipped to meet her needs.

The Commissioner did identify three things that she believed caused CR to

engage in self-harm: "Ms. Cunha's refusal to allow CR to use the phone to call for help,

Ms. Cunha's taking the phone into the bedroom and locking the door, and Ms. Cunha's

failure to respond to CR's threats to cut herself .... ff Ms. Cunha did allow CR to use the

phone to call for help that evening. (Exh. D14 at 13-14.) CR spoke with DHHS duty

worker Charlene Musgrave privately in her room. (Exh. D14 at 13-14.) After CR spoke

with Ms. Musgrave, another DHHS worker, Ms. Smith, instructed Ms. Cunha to say

goodnight and go to bed. (Exh. D14 at 14.) When CR came to Ms. Cunha's door and

threatened to cut herself, Ms. Cunha responded promptly, if not without hesitation.

(June 16, 2008 Testimony of Lori Markie at 92-93; June 30, 2008 Testimony of Jill Cunha

at 24.) CR had a history of making threats that she had never followed through with,

and there is no evidence that she had threatened to harm herself on May 19, 2007,

before doing so at Ms. Cunha's door. (Exh. D14 at 14.) Ms. Cunha had no reason to

disregard DHHS's advice that she go to bed and instead keep CR under close watch,

which is what DHHS now apparently suggests she ought to have done.

The record compels the conclusion that Ms. Cunha acted reasonably, rationally,

and appropriately to the events of May 19, 2007. This is doubly apparent when the court

25 considers that Ms. Cunha was not licensed to care for children with CR's needs and

lacked special crisis training. Her actions did not create "a threat to [CR's] health or

welfare" by causing or allowing CR to harm herself. 22 M.R.S.A. § 4002(1) Rather, CR

decided that she wanted to leave Ms. Cunha's home and acted out in a manner to

achieve the desired result.

After CR cut herself, Ms. Cunha took prompt, rational actions to obtain medical

assistance. She notified DHHS, but Ms. Smith was not able to offer immediate help.

(Exh. D14 at 14.) Out of concern for the other foster children's wellbeing, and reasoning

that forcing CR to remain in the home any longer risked re-escalating her crisis, Ms.

Cunha drove CR to the local police/EMS station where she believed medical aid was

available. Upon learning of her mistake, Ms. Cunha took CR to the hospital. She

stopped briefly to check with 911 and collect CR's MaineCare card. There is no evidence

that CR's injuries appeared life threatening or that she was expressing any significant

discomfort, and driving to the hospital appears to have been as expeditious as calling

the ambulance. (See AHR at 17-18.)

If Ms. Cunha's decisions were imperfect, they were still rational, reasonable, and

do not reflect poor judgment. Again, Ms. Cunha's actions did not constitute "a threat to

[CR's] health or welfare" rising to the level of abuse or neglect. 22 M.R.S.A. § 4002(1); see

Kane, 2008 ME 185 crrcrr 20,24-26, 960 A.2d at 1201-03. The record as a whole compels the

conclusion that the Commissioner erred when she substantiated that Ms. Cunha had

perpetrated neglect against CR.

Regarding Ms. Cunha's treatment of the other foster children in her care, the

Commissioner criticized Ms. Cunha's apparent indifference to their welfare, and found

that her "consistent denial of the possibility that these children were impacted by the

cutting incident demonstrates a lack of good judgment." (Final Decision at 2.) On the

26 night of May 19, 2007, the record shows that Ms. Cunha followed CR toward the

kitchen and away from the children's room shortly after CR knocked on Ms. Cunha's

door. One might argue that she ought to have taken the time to check on the children

herself, but it was just as reasonable for her to pursue CR directly given the lack of

apparent threat to the three girls. Their welfare was dearly on Ms. Cunha's mind as

evinced by her desire to avoid waking them with sirens.

Following the incident, none of the children raised the issue with Ms. Cunha,

their social workers, or their teachers. Their behavior was not negatively impacted;

rather, they appeared to thrive. Furthermore, there is no evidence that Ms. Cunha ever

denied that the girls could have been affected. Instead, Ms. Cunha asked the girls' social

worker, Ms. Ianaconne, whether the girls had mentioned the incident and how it should

be addressed. Ms. Ianaconne told Ms. Cunha not to bring it up and stated that she

herself would not raise the issue with the children. "[A]l1 the testimony and exhibits

before" the agency refute the conclusion that Ms. Cunha exercised poor judgment in

caring for the three young children following CR's cutting incident. Friends of Lincoln

Lakes, 2010 ME 18, lJI 13, 989 A.2d at 1133.

DHHS denied the petitioners' application to renew their foster care license based

on Ms. Cunha's alleged neglect of CR, lack of concern for the other three foster children,

and general poor judgment. (Exh. D2 at 1-3.) As discussed above, the record compels

the conclusion that Ms. Cunha did not subject CR to "abuse and neglect" as defined by

22 M.R.S.A. § 4002(1), did show concern for the other three foster children, and did not

exercise poor judgment in their care. DHHS's decision to deny Ms. Cunha and Mr.

Luna's license should thus be vacated.

27 CONCLUSION

While some of the Commissioner's findings have weak evidentiary support in

the record, she ignores other evidence credited by the hearing officer, who had the

opportuni ty to observe and weigh the testimony first hand, that contradicts her

conclusions. A fair and reasonable reading of the entire record compels a conclusion

opposite that reached by the Commissioner. The Commissioner's final decision is

reversed. The case is remanded with instructions to expunge Ms. Cunha's

substantiation of neglect and grant petitioners' application to renew their foster license.

Dated: July 20,2010

e-­

ATTORNEY FOR PLAINTIFF: ROBERT M.A. NADEAU, ESQ. NADEAU LEGAL PLLC 38 SOUTH RIVER ROAD BEDFORD NH 03110-6717

ATTORNEY FOR DEFENDANT: JANINE A. RAQUET, AAG OFFICE OF THE ATTORNEY GENERAL 84 HARLOW STREET, 2nd FLOOR BANGOR ME 04401