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In re Paige L.

Supreme Court of Maine

May 18, 2017

IN RE PAIGE L.

          Submitted On Briefs: February 23, 2017

         Reporter of Decisions

          Thomas W. Bell, Esq., The Law Office of Thomas W. Bell, Esq., Topsham, for appellant father

          Lome Fairbanks, Esq., Lewiston, for appellee mother

          Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine

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

          ALEXANDER, J.

         [¶1] The Legislature enacted 22 M.R.S. §4036(1-A) (2016) authorizing a court that has made a finding of jeopardy in a title 22 child protection proceeding to "enter an order awarding parental rights and responsibilities" pursuant to 19-A M.R.S. § 1653 (2016), "if the court determines that the order will protect the child from jeopardy and is in the child's best interest." A title 19-A parental rights and responsibilities order can provide more permanent protection for a child when, as in this case, at least one parent is fit to care for the child.

         [¶2] Section 4036(1-A)(A) provides that when, "upon request of a parent, " a court presiding over a child protection proceeding determines that entry of a parental rights and responsibilities order is appropriate, the court "shall direct the clerk to open a family matters case on behalf of the parties ... without a separate initial filing by the parties." The trial court in this case did not direct the opening of a family matters case, instead it amended the parental rights and responsibilities order that had been issued in the parties' divorce judgment three years earlier and that was in effect at the time of the jeopardy hearing. In this appeal, we address the application of section 40 3 6(1-A) to preexisting parental rights orders.

         [¶3] The father of Paige L. appeals from a judgment entered in the District Court (Augusta, E. Walker, J.) after a jeopardy hearing was conducted pursuant to 22 M.R.S. § 4035 (2016). The court's initial jeopardy judgment dismissed the child protection action and awarded sole parental rights over the child to the mother by amending a preexisting parental rights and responsibilities order pursuant to section 4036(1-A). See 22 M.R.S. § 4036(1-A)(D-1)(1). Then, in response to a motion for findings of fact and conclusions of law filed by the father, the court made a specific finding that the father created circumstances of jeopardy for his child. The father also appeals from the court's order on his motion for findings of fact and conclusions of law and the denial of his motion to alter or amend the amended judgment.

         [¶4] The father argues that the court erred by (i) improperly admitting child hearsay testimony and evidence of prior incidents of abuse at the jeopardy hearing, (ii) failing to clearly explain what would constitute a future substantial change of circumstances in the initial amended order, and (iii) denying his motion to amend the amended judgment in the family matter. Because competent evidence in the record supports the court's finding of jeopardy, and because the court did not abuse its discretion by amending the preexisting parental rights and responsibilities order pursuant to section 4036(1-A), we affirm.

         I. PROCEDURAL HISTORY

         [¶5] The mother and father were married in 2009, and Paige was born in January 2010. The father initiated a divorce action in September 2012, and the parties were divorced by a judgment [Chandler, M.) dated April 4, 2013. Pursuant to the divorce judgment, the parties were awarded shared parental rights and responsibilities, the mother was awarded primary physical residence of the child, and the father was awarded contact every weekend "and other times by agreement of the parties." In July 2013, by agreement of the parties, the court [Fowle, J.) granted the mother a final order for protection from abuse against the father. Although the protection from abuse order was also issued on behalf of Paige, the only substantive change it made to the contact schedule was to name a third party who was to "facilitate" transfers of the child.

         [¶6] On October 8, 2015, the Department of Health and Human Services (the Department) filed a child protection petition and a request for a preliminary protection order. See 22 M.R.S. §§ 4032, 4034 (2016). The Department's petition alleged that the child was in jeopardy in the care of her father based on the father's extensive history of child abuse and recent reports to law enforcement that the father's current wife, a convicted sex offender and a direct caregiver for Paige, had sexually abused her minor children. The petition also asserted that Paige was not in jeopardy in the care of her mother and stated, "The Department is asking that the court provide protection for Paige [L.] by granting [the mother] full custody of Paige to ensure that she can fully protect her daughter from threats of immediate harm by [the father] and [his wife]."

         [¶7] The court [Mullen, J.) issued a preliminary protection order that day, awarding custody of the child to the mother. That order also provided that the father could have no unsupervised contact with Paige. The father waived his right to have a summary preliminary hearing, and, as a result, that order remained in place for the next four months. See 22 M.R.S. § 4034(4).

         [¶8] The court (E Walker, /.) conducted a two-day jeopardy hearing in February 2016. At the beginning of the hearing, the Department presented a proposed order of "nonjeopardy" as to the mother, which the court issued without objection. The court also noted on the record that-if it found jeopardy concerning the father-it could modify the parties' preexisting parental rights and responsibilities order.[1]

         [¶9] The evidence at the jeopardy hearing consisted of testimony from several witnesses including the mother, the father, a detective from the Augusta Police Department, the guardian ad litem, and five social workers, and exhibits including a child's drawing of a wooden paddle, the temporary and final protection from abuse orders against the father, a doctor's report, the father's military discharge paperwork, and a reunification plan.

         [¶10] On April 8, 2016, the court issued a "dispositional" order in the child protection proceeding, and, as authorized by section 4036(1-A), attached an amended parental rights and responsibilities order modifying the parental rights and responsibilities order issued in the divorce judgment. The dispositional order was docketed in the child protection matter. In that order, the court stated only that the "[c]hild is doing well in mother's care and all parties agree that the child is not in Jeopardy in mother's care." The order contained no finding of jeopardy as to the father. Through the dispositional order, the court also purported to dismiss the child protection action pursuant to 22 M.R.S. § 4036(1-A)(D-1)(1).

         [¶11] The amended parental rights and responsibilities order, docketed in the preexisting family matter, awarded sole parental rights and responsibilities to the mother and supervised contact to the father pursuant to 19-A M.R.S. § 1653. The amended order stated that "[i]t shall be a significant change of circumstances if the father addresses the issues that resulted in this Order." Otherwise, the amended order did not contain any findings of ...


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