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In re C.P.

Supreme Judicial Court of Maine

January 26, 2016

IN RE C.P. et al

         Submitted on Briefs November 19, 2015.

Page 175

          On the briefs: Chelsea S. Peters, Esq., Auburn, for appellant mother.

         Jeffrey S. Dolley, Esq., Dolley Law Firm, LLC, Lewiston, for appellant father.

         Janet T. Mills, Attorney General, and Courtney Goodwin, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services.

         Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

          OPINION

Page 176

          SAUFLEY, C.J.

          [¶1] The parents of six-year-old C.P. and her five-year-old sister, C.P., appeal from an amended judgment entered in the District Court (Lewiston, Oram, J. ) terminating their parental rights to their daughters. The mother did not appear at the trial, and the father stipulated at the outset of the trial that he was unfit to care for his daughters. The hearing focused on the parents' arguments that the girls should be placed in a permanency guardianship with their paternal grandparents rather than being freed for adoption through the entry of a judgment terminating the parental rights of their parents.

          [¶2] The procedure was complicated by the resignation of the trial judge ( Schneider, J. ) from the bench shortly after the trial and one day after the entry of judgment. The amended judgment that is on appeal was entered by a different judge ( Oram, J. ) after that resignation. The parents argue that the entry of the initial termination order violated their due process rights because it was drafted by an Assistant Attorney General and did not reflect the trial court's independent judgment, and they argue that the successor judge should have held a new trial instead of entering an amended judgment. The parents also argue that the court should have established a permanency guardianship with the girls' paternal grandparents instead of terminating the parents' parental rights to free the children for adoption.[1] We affirm the judgment.

         I. BACKGROUND

          [¶3] In December 2012, the Department of Health and Human Services petitioned for a child protection order for C.P. (then age three) and C.P. (then almost two years old). The Department did not seek an order of preliminary protection because the mother agreed to a safety plan pursuant to which the children would stay with their paternal grandparents, with whom the mother was also living, while the mother began receiving services. The father was in prison with no expectation of release until at least September 2015.

          [¶4] Due to conflict with the grandparents, the mother moved out of the grandparents' home after two or three months. The Department supported this transition. In April 2013, however, the Department requested a preliminary protection order after the mother relapsed into substance abuse, relocated with the girls without family team involvement, and left the girls with other family members who could not take care of them.

          [¶5] The court ( Beliveau, J. ) signed a preliminary protection order placing the girls in the Department's custody. The girls were placed in a foster home. The mother waived the opportunity for a summary preliminary hearing, and a jeopardy

Page 177

order was entered with both parents' consent on April 29, 2013. Approximately a year later, on April 17, 2014, the Department petitioned for termination of the parents' parental rights to the children.

          [¶6] In July 2014, the father, joined by the mother, moved for an expedited judicial review hearing seeking to have the court again consider placement of the girls with their paternal grandparents. The court ( Schneider, J. ) held an expedited judicial review hearing regarding placement on August 25 and 27, 2014. After hearing from the paternal grandparents, the paternal grandmother's psychiatrist, the foster mother, and Department employees, the court denied the parents' request that the girls be placed in the grandparents' home, in part because the grandparents could not meet the requirements to receive a foster care license.

          [¶7] On November 4, 2014, the court held a hearing on the petition to terminate parental rights. The parties agreed that the court could consider all of the testimony from the previous judicial review hearing. The mother did not attend the hearing. She had violated the terms of her probation, resulting in an active warrant for her arrest.

          [¶8] At the outset of the hearing, the father, who remained incarcerated, conceded his parental unfitness based on his inability to reunify with the children in time to meet their needs. The court then received additional evidence regarding the best interests of the children, including evidence related to their placement, their need for permanency, and their developing relationship with a potential adoptive mother. After the hearing, the parents argued that the court should place the children with their grandparents and asked that the court appoint the grandparents as permanency guardians. See 22 M.R.S. § 4038-C (2015).

          [¶9] Sometime after the hearing, the court, through the clerk's office, asked the Assistant Attorney General to draft a proposed order. The AAG drafted two proposed orders--one granting the termination petition and one denying it. She shared these drafts with the parties' counsel, the guardian ad litem, and the clerk's office electronically on January 28, 2015, conveying to them her understanding from the court that an order would be entered quickly. Counsel received paper copies of the proposed orders on January 30, 2015.

          [¶10] The court entered an order terminating both parents' parental rights to the two girls on February 3, 2015. The judge who issued the order left the bench through a planned resignation, effective the next day, February 4, 2015.

          [¶11] The mother, joined by the father, moved to alter or amend the judgment or for a new trial, see M.R. Civ. P. 59, on the ground that the court had not exercised independent judgment but had instead adopted one of the AAG's drafts verbatim without affording the parents' counsel an opportunity to submit proposals. The parents sought a denial of the petition for termination or, in the alternative, a new trial. The father also moved to alter or amend the judgment and for amended or additional findings, see M.R. Civ. P. 52,[2] 59, on the grounds that the court's findings conflicted with its earlier findings regarding placement with the grandparents and that another transition would be detrimental to the children. The mother filed a notice of appeal.

          [¶12] On May 4, 2015, the court ( Oram, J. ) ...


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