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In re Nicholas S.

Supreme Court of Maine

June 2, 2016

IN RE NICHOLAS S. et al.

Argued: April 6, 2016

Machias District Court docket numbers PC-2014-19, PC-2014-20, and FM-2011-73

On the briefs:

Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother

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

At oral argument:

Amy McNally, Esq., for appellant mother

Meghan Szylvian, Asst. Atty. Gen., for appellee Department of Health and Human Services Machias District Court docket numbers PC-2014-19, PC-2014-20, and FM-2011-73 For Clerk Reference Only

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

PER CURIAM

[¶1] The mother of Nicholas S., Ryan S., and Sean B. appeals from orders entered in the District Court (Machias, D. Mitchell, J.) finding, by a preponderance of the evidence, that the three children were in jeopardy to their health or welfare in the mother's care. The mother argues that the Department of Health and Human Services did not present sufficient evidence to support the court's jeopardy findings. We disagree and affirm the decisions, and we clarify that the Maine Rules of Appellate Procedure do not prohibit a trial court, pending our disposition of an appeal from a jeopardy order, from acting pursuant to 22 M.R.S. § 4036(1-A) (2015) to dismiss a child protection petition after determining that entry of a parental rights order will alleviate jeopardy.

I. BACKGROUND

[¶2] On October 1, 2014, the Department filed separate child protection petitions-one regarding Sean, and one regarding twins Nicholas and Ryan-in the District Court (Machias). The Department alleged that the children were in jeopardy in the mother's care due to her failure to protect them from physical abuse by her husband, [1] and that the mother had deprived the children of an adequate education.

[ΒΆ3] After a consolidated jeopardy hearing held on January 14 and April 15, 2015, the court found the following facts by a preponderance of the evidence. The mother's husband struck Sean with a wooden implement after Sean did not tell the mother or her husband that he had been ill and had vomited before he was able to reach the bathroom. The assault left a scratch "between [Sean's] scrotum and anus" that was later seen by Sean's father. The implement the mother's husband used was known to the children as the "spank spoon." The court found that the assault had occurred and noted that the mother's explanation for the use of such "discipline, " i.e., that Sean had lied about the vomit, "speaks volumes about how Sean feels in the [mother's] home, a fact that is supported by . . . [his] quiet, reserved and shy demeanor in that home." Based on these findings, which are ...


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