AUGUSTA — A legislative committee voted 8-1 Wednesday to sue the Department of Health and Human Services to gain access to investigative files of child deaths before the criminal cases are resolved in court.

The Government Oversight Committee decided to take the unusual step of suing DHHS after agency officials did not comply with its subpoena seeking records involving the cases of children who had been in the state’s child protection system and died from abuse or neglect. The agency and the Office of the Maine Attorney General said releasing the records to lawmakers would violate confidentiality laws, particularly when there are criminal cases pending.

Instead of sharing those files with lawmakers, DHHS shared them only with the Legislature’s independent, nonpartisan watchdog agency, the Office of Program Evaluation and Government Accountability. OPEGA usually reviews confidential information and presents findings and recommendations to lawmakers.

Committee Republicans were the most vocal in their support to sue the administration, though three Democrats — Sen. Susan Deschambault of Biddeford, Rep. Holly Stover of Boothbay and Rep. Jessica Fay of Raymond — voted in support of the motion.

Senate Republican Leader Jeff Timberlake of Turner urged the committee to file a motion in Kennebec County Superior Court to force DHHS to comply with the subpoena so lawmakers can better understand deficiencies in the state’s Child Protective Services program that contributed to a string of child deaths.

“I think it’s very important we push this subpoena forward,” Timberlake said. “I need to know what happened in DHHS and how that failed.”

Sen. Rick Bennett, R-Oxford, called the administration’s position of withholding the records from lawmakers “bizarre” and “stunning.” He said the dispute is about basic separation of powers between the executive and legislative branches, saying “we need to press forward on this.”

Sen. Nate Libby, D-Lewiston, was the only member to vote against the motion. Libby, the committee’s co-chair, said it would be more efficient for lawmakers to clarify state law, “making it crystal clear” that GOC members may have access to confidential, investigatory information, rather than pursuing the issue in Maine’s backlogged court system.

“I expect that bill would get prompt, near unanimous, tri-partisan support and that files could be turned around rather quickly,” Libby said. “I also believe a veto could be overridden on such a bill, so that to me is the cleanest most straightforward efficient way to get access to these files.”

DHHS following legal advice

A spokeswoman for DHHS said the agency is following legal advice from the Attorney General’s Office.

“The Office of the Attorney General’s Chief of Child Protection advised the Department of Health and Human Services in June that it would be impermissible to release these confidential records to Government Oversight Committee members directly,” Jackie Farwell said in an email Wednesday, Oct. 19.

“Instead, the department shared these records with the Office of Program Evaluation and Government Accountability, pursuant to state law. … We look forward to OPEGA’s review and the court’s resolution of this issue so we can advance our vital work to protect Maine children.”

A deputy attorney general will file the lawsuit on behalf of the committee even though the Attorney General’s Office has sided with DHHS. Christopher Taub, the deputy attorney general assigned to the committee, assured members Wednesday that he would handle the case independently of the office and that it would not be necessary for the committee to hire a private attorney.

OPEGA Director Peter Schleck said that DHHS has turned over the case files related to four children who died. He said staff is reviewing them and would not have a report until February.

The bipartisan vote Oct. 19 escalates ongoing tensions between lawmakers and the Mills administration in the closing weeks of the gubernatorial campaign. Timberlake and Sen. Lisa Keim, R-Dixfield, suggested that OPEGA and the GOC were not conducting their respective reviews of the Office of Child and Family Services with enough urgency, prompting an objection from Libby.

“I do have to object to this notion that we have unnecessarily delayed the review of OCFS,” he said. “This work has dominated the work of this committee for six years.

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 where criminal cases have been filed. So far in 2022, seven deaths of children who had child protective history have been tracked by DHHS.

Four child deaths at issue

The files in question are related to four child deaths that occurred in late spring and summer 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.

Five days later, 3-year-old Hailey Goding was found dead in Old Town. Police arrested her mother, Hillary Goding, and charged her with manslaughter. Taub said a plea agreement was reached in the Goding case, with sentencing expected before the end of the month.

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.” A jury on Tuesday found Williams’ mother, Jessica Trefethen, 36, guilty of depraved indifference murder.

And Reginald Melvin of Milo was indicted on a murder charge in the death of his month-old son Sylus Melvin in August 2021.

The GOC is expected to seek additional information from DHHS about the cases that have been resolved after sentencing has occurred.

The committee also is planning to send a letter to the court, asking for an expedited review of the case.

“It is very unusual and I understand they are very busy, but moving forward with this is also very important to us as well,” Keim said. “I think we should be reaching out to the court as well and saying this is urgent and important.”