Judy Potter Attorney at Law 356 Spurwink Avenue Cape Elizabeth, Maine 04107 E-mail: firstname.lastname@example.org Telephone No. 207-799-5453 Cell Phone No. 207-232-1650July 8, 2011The Honorable Paul LePageGovernor of the State of MaineOffice of the GovernorState House Station OneAugusta, Maine 43333-001Re: DHHS and the case of Mila MalenkoDear Governor LePage:I have been advised that your office has requested a letter from me relating to DHHS and itshandling of the case of Mila Malenko. I normally do not write letters about the actions taken byState officials. However, I understand that you have taken a personal interest in the DHHSshandling of this matter. I also understand that a number of meetings have occurred amongvarious persons and affidavits and reports from experts have been given to DHHS. Obviously, Ihave not been present at any of those meetings so I am just catching up. I have reviewed thewritten material that I have access to. Based on what I have read and what my client and otherprofessionals have told me, there are some things relating to the DHHSs handling of this matterthat are of concern.I am not clear about exact reasons that the Spurwink conclusions were dismissed by DHHS. Ihave worked with Spurwink on many occasions. It has been my experience that they are veryconservative in their conclusions relating to child sexual abuse, frequently finding that none hasoccurred. Given their reputation in this regard, especially the excellent reputation of theparticular evaluator of Mila Malenko with whom I have worked before, it would be useful tolearn exactly why her conclusions were dismissed by DHHS.Jim Beougher and others at DHHS apparently have said that the Spurwink report was rejected byDHHS because they had secret information. Apparently, Mr. Beougher later retracted hisstatement. It would be interesting to know where the truth lies in this regard. For some reason,DHHS appears to have concluded that my client had "coached" Mila, a conclusion apparently notreached by Spurwink. It also appears that DHHS thought that Polly Campbell had done this. Iunderstand that Ms. Campbell is a very qualified professional in her field which is forensicsexual assault, so I question this conclusion relating to Ms. Campbells actions. It appears that no
one from DHHS spoke to my client about any alleged coaching before determining that the childhad been coached, assuming that this is the reason for the actions by DHHS. My client tells me that on June 28th she was told by Mark Dalton and Gina Googins thatnothing was closed with regards to the case of Mila Malenko and that they were still consideringthe meth, blunt force trauma allegations, and Spurwink findings. However, the attorney forMilas father received a letter dated June 27th, which he shared with me on July fifth, saying thatthe neglect and sexual abuse charges alleged by my client were not substantiated. My client didnot receive a letter to this effect until June 30th. It seems to me inappropriate for DHHS tonotify the concerned parties of its conclusions at different times especially given the sensitivenature of this case.Apparently, Mr. Malenkos attorney wrote the following to DHHS prior to his being sent theletter dated June twenty-seventh saying that the charges by my client were not substantiated: Igor and I are waiting for the letter of unsubstantiation, which as I understand it should be forthcoming no later than 35 days after the patently false claims were made. Mark, you informed me on at least two occasions that there was absolutely no evidence to support the recent claims (just like the other ones already un- substantiated). If DHHS produces a letter with a different result, you may rest assured that you will find yourself subpoenaed in one or more lawsuits, since it is my job to make sure the truth surfaces.Mr. Malenkos attorney apparently also told DHHS that he and his client do not trust DHHS to act in the best interests of this little girl. We shall not cooperate in any manner from here forward. Please let me know if you are going to file a Title 22 action, for I shall immediately file pleadings to bring the case before Judge Moskowitz for a full determination.In the June thirtieth letter to my client, the DHHS did not state its reasons for not substantiatingthe neglect and sexual abuse allegations. Surely, knowing the reasoning behind the decision ofDHHS, would have been helpful to everyone concerned with this situation. We are now forcedto guess about the basis of DHHSs conclusions.One possibility is that Caseworker Rebecca Austins interpretation of information received fromDr. Carl Baum was involved. However, according to a recent e-mail received from Dr. CarlBaum, caseworker Rebecca Austin: …completely misinterpreted [his] clarification of minor details in [his] sworn affidavit. Apparently she has failed to understand the simple and central tenets of this affidavit, that NO amount of methamphetamine should appear in the urine of a child, and that no one has explained this finding. [He has] absolutely not retracted [his] affidavit, and would be happy to testify to this effect.
He added in this e-mail: As a mandated reporter of child abuse and neglect in [his] State of Connecticut, I am shocked that DHHS has closed Milas case without a full investigation and urge the Commissioner to re-open the investigation immediately.A copy of his e-mail stating this is enclosed for your information. DHHS might have beenconcerned with the chain of custody of the sample sent to the lab for testing. According to myunderstanding, having handled a lot of criminal cases in which the chain of custody of suchspecimens is at issue, the chain of custody of the sample sent to the lab can be readily establishedin this case. The point is that no one concerned with this case should be forced to engage in suchspeculation about the reasons a State agency makes its determination in such a delicate matter.Others have expressed their concerns about the DHHSs handling this case to me. AnneJennings, who is from Maine and who has worked for many years at DHHS is concerned. Dr.Joyanna Silberg is so concerned that she has offered to do free training in Maine on the handlingof issues of child and domestic abuse pursuant to a grant she has for this purpose. I wouldwelcome her coming to Maine for this purpose.Finally, I have practiced law in the family law, criminal law and discrimination areas in Mainefor nearly thirty-nine years. I was a professor at the University of Maine School of Law forthirty-two of those years teaching and handling cases at the Cumberland Legal Clinic at the LawSchool, of which I was the Director for many years. During these years, I have been involved ina number of cases in which DHHS was also involved. As I have said, I have not been involvedin this case until very recently, so I have no first-hand information about it. However, based onthe information I have received, this appears to be one of the more concerning investigationsdone by DHHS. Had I been involved in this case prior to this time, I would have been askingthese questions throughout the process. However, I did not have that opportunity.This matter has come to a sad ending. Milas father is preventing my client from seeing Milawithout her contact being supervised. As one of his reasons for doing this, he is citing theDHHSs decision in this matter. My client has not seen Mila since May tenth. Unfortunately,there will have to be more court hearings to resolve this problem.Very truly yours,Judy Potter EsquireAttorney for Ms. Lori Handrahan