IN RE C.P. et al
on Briefs November 19, 2015.
briefs: Chelsea S. Peters, Esq., Auburn, for appellant
S. Dolley, Esq., Dolley Law Firm, LLC, Lewiston, for
T. Mills, Attorney General, and Courtney Goodwin, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
Department of Health and Human Services.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
[¶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. We affirm the judgment.
[¶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
[¶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
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
[¶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, 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. ) ...