September 18, 2015.
the briefs and at oral argument:
Irving Gilbert, Esq., Elliott & MacLean, LLP, Camden, for
W. Baiungo, Esq., Belfast, for appellee grandmother.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
[¶1] The father of Abigail Doe and Bethany
Doe appeals from a judgment of the Waldo
County Probate Court ( Longley, J. ) appointing the
girls' maternal grandmother as limited guardian of the
girls. The father argues that the court erred by granting the
grandmother guardianship based on both her status as the
children's de facto guardian and the temporarily
intolerable living situation created by the father. We affirm
that portion of the Probate Court's judgment that awards
the grandmother a limited guardianship, but remand to the
court to comply with 18-A M.R.S. § 5-105 (2015).
[¶2] The court made the following findings
of fact, which are supported by competent evidence in the
record. Abigail and Bethany are fourteen and nine years old,
respectively. When the father and the girls' mother were
divorced in 2010, the District Court (Belfast, Worth,
J. ) awarded the father and the mother shared parental
rights and responsibilities, and awarded the mother the right
to provide the children's primary residence. The father,
who has served in the United States Navy for about seventeen
years, was deployed at sea during the years following the
divorce, and the girls lived with their mother in Maine.
[¶3] When concerns about the mother's
substance abuse, mental health, and ability to care for the
girls arose in the summer of 2011, the father moved to modify
the District Court's order. At the time of the
father's motion, he was stationed aboard a ship and the
girls were living with the grandmother. In his motion, the
father asked the court to " [a]ward residential care of
the minor children to [the grandmother]."
[¶4] In December of 2011, before hearing the
father's motion, the District Court ( Tucker, J.
) entered an ex parte order awarding the grandmother
temporary custody of the children based upon a finding that
the children were in jeopardy in the care of their mother.
See 19-A M.R.S. § 1653(2)(C) (2015); see
also 22 M.R.S. § 4002(6) (2015). Soon thereafter,
the court granted the grandmother's request for
intervenor status in the District Court action. See
M.R. Civ. P. 24, 111(c).
[¶5] After conducting a hearing in April of
2012 on the father's motion to modify, the District Court
( Sparaco, J. ) awarded the father sole parental
rights and responsibilities, s ee 19-A M.R.S. §
1657(1)(A) (2015), but also noted that the father intended
for the children to continue to reside with the grandmother;
the court encouraged the father to make guardianship
arrangements with the grandmother:
[The father] intends to and can make independent guardianship
arrangement for the children while he is away through the
Navy's Family Care Plan. [The father] has a good
relationship with [the grandmother]. If awarded sole parental
rights and responsibilities, [the father] intends to provide
for the children to remain residing with [the grandmother]
while he is away.
[¶6] This order, dated April 19, 2012, was
the last order concerning these children issued by the
District Court. Notwithstanding the District Court's
advice, the father never created a guardianship arrangement
through the Navy's Family Care Plan, nor did he petition
the Probate Court to make the grandmother the guardian of his
children. Instead, the father ...