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Guardianship of Thayer

Supreme Judicial Court of Maine

April 12, 2016

GUARDIANSHIP OF AUBREE THAYER

         Argued November 3, 2015

          On the briefs: Tara A. Rich, Esq., Libby O'Brien Kingsley & Champion, Kennebunk, for appellant father.

         Heather T. Whiting, Esq., and Michael T. Devine, Esq., Drummond & Drummond, LLP, Portland, for appellee maternal grandmother.

         At oral argument: Tara A. Rich, Esq., for appellant father.

         Heather T. Whiting, Esq., for appellees maternal grandmother.

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

          OPINION

         JABAR, J.

          [¶1] The father of Aubree Thayer appeals from a judgment of the York County Probate Court ( Longley, J.)[1] awarding a limited guardianship of Aubree to her maternal grandmother pursuant to 18-A M.R.S. § 5-204(d) (2015). The father primarily challenges the court's determination that he demonstrated a lack of consistent participation in Aubree's life. We are satisfied that the evidence supports the court's conclusions that the father demonstrated a lack of consistent participation by failing to consistently care for and support Aubree, and that the father remained unable to care for Aubree at the time of the hearing on the petition. We affirm the judgment.

         I. BACKGROUND

          [¶2] The following findings of fact made by the trial court are supported by competent evidence in the record. When the mother became pregnant with Aubree, she was living with the father in Colorado. The young couple was not able to support a child on their own, and the mother soon returned to Maine to finish her pregnancy in the home of the maternal grandparents. The father remained in Colorado, where he was on probation for drug-related crimes. Due to the terms of his probation, the father was able to visit Aubree only twice during the first nine months of her life.

          [¶3] In February 2014, when Aubree was nine months old, the father moved to Maine. For the next month, the father lived with the mother and Aubree in the home of the maternal grandparents and received parenting instruction from the maternal grandparents. During this time, the father participated in caring for Aubree only occasionally, and only when prompted, while the mother and the maternal grandparents continued to share equal responsibility for Aubree's care.

          [¶4] In May 2014, approximately two months after the father left Aubree in the care of her mother and maternal grandparents, Aubree's mother died of a heroin overdose. Throughout the following summer, the maternal grandparents provided nearly all of Aubree's care and support,[2] while the father maintained an irresponsible existence that consisted of drinking; smoking marijuana; and, at times, driving while under the influence with Aubree in the vehicle. During this period, the father admitted that he did not know how to care for Aubree and that he thought the maternal grandparents were " far better for [her]."

          [¶5] In August 2014, after an argument with the maternal grandfather, the father removed Aubree from the maternal grandparents' care. The maternal grandparents then petitioned for coguardianship of Aubree. See 18-A M.R.S. § 5-204 (2015). In support of their petition, the maternal grandparents alleged that the father had never provided direct care for Aubree; had maintained only limited contact with her; and was unable to care for her or provide her with a stable, drug-free home. The petitioners claimed that the father had demonstrated a lack of consistent participation in Aubree's life within the meaning of 18-A M.R.S. § 5-204(d); they did not assert that he had created a temporarily intolerable living situation within the meaning of 18-A M.R.S. § 5-204(c).

          [¶6] While the petition was pending, the father allowed Aubree's health issues to worsen through neglect. When Aubree developed a cough, the father neglected her symptoms for several weeks before taking her to see a doctor; in the meantime, Aubree's condition worsened into an ear and sinus infection. After taking Aubree from the maternal grandparents' home, the father continued to demonstrate limited job-retention skills and failed to secure stable, independent housing for himself and his daughter. At the time of the hearing, the father remained without a permanent home. He claimed that he and Aubree sometimes stayed with his parents and sometimes stayed with his aunt. In these homes, the father fed Aubree and changed her diapers when others were not available to do so.

          [¶7] In March 2015, after a testimonial hearing, the court entered a judgment granting the petition for Aubree's guardianship as to the maternal grandmother and denying it as to the maternal grandfather. The court determined that the father had demonstrated a lack of consistent participation with Aubree within the meaning of section 5-204(d) by engaging in a pattern of substance abuse that rendered him unable to consistently meet Aubree's needs. The court also explained its decision by stating that the father " has ongoing needs and issues that currently render [him] unable to meet the physical, mental and emotional health and developmental needs of his child and to keep her out of harm's way. This father simply is not yet able to meet the child's needs." (Footnote omitted). The court determined that Aubree's best interest would be served by the appointment of the maternal grandmother as a limited guardian, reasoning that the father and the maternal grandmother had demonstrated an ongoing ability to work together, while the father and the maternal grandfather had not. In structuring and limiting the guardianship, the court required the maternal grandmother to assist the father in the acquisition of parenting skills, to prioritize and ensure Aubree's regular contact and visitation with the father, and to honor the prospect of Aubree living with the father once he acquired the ability to meet her needs. See 18-A M.R.S. § § 5-105, 5-213 (2015).

          [¶8] The father timely moved for further findings of fact and conclusions of law, and to alter or amend the judgment. See M.R. Prob. P. 52, 59; see also M.R. Civ. P. 52, 59. In so doing, he argued that the court, in determining whether there was a demonstrated lack of consistent participation, had failed to make adequate findings regarding the factors enumerated in 18-A M.R.S. § 5-101(1-C) (2015). He also asserted that the petition could not be granted because the evidence did not suggest that he was currently demonstrating a lack of consistent participation.

          [¶9] In April 2015, the court entered an order making further findings and conclusions, emphasizing that it had applied a high standard of proof to the grandparents' petition and found the facts supporting its decision upon the basis of highly credible evidence. The court clarified that the maternal grandparents qualified as " de facto guardians" within the meaning of section 5-204(d) because Aubree had resided with them for fifteen months, during which time the father had demonstrated a lack of consistent participation by chronically abusing substances and failing to maintain stable employment or independent housing, while depending upon the maternal grandparents to provide the majority of Aubree's care and support. The court determined that this behavior reflected a failure by the father to recognize Aubree's needs, and a failure to comply with the " duties imposed upon a parent by the parent-child relationship, including but not limited to, providing the child necessary food, clothing, shelter, health care, education, a nurturing and consistent relationship and other care and control necessary for the child's physical, mental and emotional health and development."

          [¶10] Although the court appeared to interpret section 5-204(d) to require the maternal grandparents to show a lack of consistent parental participation only during the time that the child resided with them, the court's explanation of its determination of parental unfitness referred not only to the father's actions during the time that Aubree was living with her grandparents, but also to his actions during the months when Aubree was primarily in his care. The court explicitly found that the father's actions had continued to harm Aubree after he removed her from the maternal grandparents' care. Specifically, the court found that the father had " subjected Aubree to his bouncing around lifestyle" and delayed in " getting the child the immediate medical treatment that her worsening infections required." Correctly reflecting the necessity of ...


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